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A STUDY OF ENGINEERING

EDUCATION

PREPARED FOR THE JOINT COMMITTEE ON ENGINEERING
EDUCATION OF THE NATIONAL ENGINEERING SOCIETIES

BY
CHARLES RIBORG MANN

BULLETIN NUMBER ELEVEN

NEW YORK CITY

576 FIFTH AVENUE

D. B. UPDIKE • THE MERRYMOUNT PRESS • BOSTON

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CONTENTS

PAGE

PREFACE v

By the President of the Carnegie Foundation

INTRODUCTION ix

By the Joint Committee on Engineering Education of the National Engi-
neering Societies

PART I PRESENT CONDITIONS

CHAPTER

I. The Development of Engineering Schools in the United States 3

II. Aims and Curricula of the Early Schools 9

III. The Struggle for Resources and Recognition 15

IV. Development of the Curriculum into its Present Form 21
V. Methods of Administration in Engineering Schools 27

VI. Student Elimination and Progress 32

VII. Types of Instruction in Engineering Schools 37

PART II THE PROBLEMS OF ENGINEERING EDUCATION

VIII. Admission 47

IX. The Time Schedule 54

X. Content of Courses 60

XI. Testing and Grading 67

XII. Shopwork 75

PART III SUGGESTED SOLUTIONS

XIII. The Curriculum 87

XIV. Specialization 95
XV. Teachers 101

XVI. The Professional Engineer 106

iv CONTENTS

APPENDIX
Objective Tests 117

SELECTED BIBLIOGRAPHY 127

INDEX 131

PREFACE

The present bulletin has been prepared under conditions somewhat different from
other publications and bulletins of the Carnegie Foundation. This study of Engineer-
ing Education arose out of the action of a joint committee on engineering education,
representing the principal engineering societies. More than three years ago the Com-
mittee had gathered a considerable amount of material bearing on the subject, and
had come to the opinion that the work could be best carried out by the employment
of some one trained in applied science, who should devote his entire attention to the
study, working under the general direction of the Committee and in touch with it.
The Carnegie Foundation agreed to appoint such a man and to bear the expense of the
study. Professor Charles R. Mann, of the University of Chicago, undertook the work
under these conditions, and the report which follows is the outcome of his studies under
the general supervision of the Committee. The discussion of Professor Mann's report
by the Committee forms the introductory chapter.

It will be understood that the report did not contemplate a study or examination
of the engineering schools of the United States, altho a limited number of typical
schools were visited and studied by Professor Mann. The point of view from which
the study was undertaken was the following: Fifty years ago, when the engineering
schools of the United States were inaugurated, they began their work upon a definite
teaching plan and one that had at least pedagogic consistency. The course was four
years. The first two were spent mainly in the fundamental sciences — chemistry, phy-
sics, mathematics, and mechanics ; the last two years mainly in the applications of
these sciences to theoretical and practical problems.

In the half century that has passed this course of study has been overlaid with a
great number of special studies intended to enable the student to deal with the con-
stantly growing applications of science to the industries. While the original teaching
plan remains as the basis of the four-year engineering curriculum, the courses given
in most schools have been greatly modified in the effort to teach special subjects. Asa
result, the load upon the student has become continually heavier and bears unequally
in different places and in different parts of the course. In addition there is a wide-
spread feeling that under this pressure the great body of students fail to gain, on
the one hand, a satisfactory grounding in the fundamental sciences ; and on the other
hand, do not fulfil the expectations of engineers and manufacturers in dealing with
the practical problems with which they are confronted on leaving the engineering
schools.

It is out of this situation that the Committee of the Engineering Societies began
its study, whose purpose is not so much to record the details of engineering teaching
in the various schools as to examine the fundamental question of the right methods
of teaching and of the preparation of young men for the engineering professions: in
other words, to question anew the pedagogic solution of fifty years ago, to examine

vi PREFACE

the curriculum of to-day and the methods of teaching now employed, and to suggest
in the light of fifty years of experience the pedagogic basis of the course of study
intended to prepare young men for the work demanded of the engineer of to-day.
In the effort to do this, the point of view of the teacher, of the engineer, and of the
manufacturer and employer has been kept in view.

While the report and the introduction of the Committee deal with many matters
of detail in the formation and development of a suitable curriculum, and suggest vari-
ous methods for simplifying the present courses of study, three questions of impor-
tance are raised which are closely related to the primary purpose for which the engi-
neering school exists.

Professor Mann argues that the present arrangement, under which the fundamental
sciences are taught in advance of their applications, is the wrong method of teaching,
and that the engineering education will never be satisfactory until theory and prac-
tice are taught simultaneously.

For example, mathematics is the most important tool of the engineer. It is taught
for two years in the engineering school in separate courses — higher algebra, coordi-
nate geometry, the calculus, and mechanics. The splitting up of mathematics into sepa-
rate courses is itself a source of weakness from the standpoint of the student's needs.
He needs not studies nor recitations in these artificial divisions of mathematics, but
a single course in mathematics illuminated and made alive at every step by applica-
tions in the solutions of actual problems. Algebra, coordinate geometry, and the cal-
culus are not separate and unrelated studies, but merely parts of the one subject of
mathematics.

As a consequence of this method of teaching Professor Mann urges that the engi-
neering courses, as taught in the preliminary years, do not form sound criteria for judg-
ing as to the ability of the student to do successful engineering work, and that many
students are sent away from the technical school without having had any fair test
as to their capacity for engineering practice or study.

In the third place he gives the results of certain objective tests designed to throw
light upon the fitness of the applicant to undertake engineering studies and practice.
It is quite clear that the trial of these tests made hitherto is not sufficient to demon-
strate their trustworthiness, but the question raised is an exceedingly interesting one.
There are few devices connected with teaching more unsatisfactory than our present
day examinations, whether used as tests for admission or as criteria of performance on
the part of the student.

In general these suggestions of Professor Mann, if carried out, would affect present
day teaching of engineering in much the same way that Langdell's case method revo-
lutionized the teaching of law.

Langdell built the teaching of law exclusively and dh*ectly upon the study of cases.
His notion was that the principles upon which the law rests are few in number, and
that these could be best apprehended and mastered by the student in the direct

PREFACE vii

examination of typical cases. The number of such cases necessary to illustrate these
principles he held to be very small in comparison with the overwhelming mass of law
reports to which the student had formerly been directed as the basis of the study
of the law in conjunction with textbooks. Langdell's method involved the working
out by the student of the principles of the law from actual cases tried and decided
in the courts. Law he conceived of as an Applied Science.

Langdell's method is not infrequently referred to as the laboratory method of
teaching law, conveying the impression that the case method of teaching law con-
sists in transferring to the teaching of law the methods employed in the teaching of
applied science. This statement has been the cause of no little confusion. The teach-
ing of law by the case method presents only a remote analogy with the methods
hitherto employed in teaching applied science. Applied science is not taught ordi-
narily in the engineering school by the case method. On the contrary, the methods
actually employed in teaching the so-called laboratory subjects do not differ appre-
ciably from the methods of teaching literature or Latin. At present the student un-
dertakes to learn a vast body of theory under the name of physics, mechanics, or chem-
istry, illustrated in some measure in the laboratory, and then seeks later to select
from this mass of knowledge the principles to be applied, for example in electrical
engineering. The case method would proceed in directly the opposite manner. Taking
up, for example, the dynamo as a "case," — that is, as an illustration of physical laws
in their actual concrete working, — it would proceed to analyze the machine for the
purpose of discovering the fundamental physical or mechanical principles involved
in its operation. It would lead the student from practical applications by analysis
to a comprehension of theory, instead of from theory to applications as under present
methods of teaching.

It is an interesting fact that while much is said about the teaching of science in
the modern school, the methods of teaching science are actually but little changed
from those employed in teaching the subjects that filled the curriculum before the
teaching of science began in the school. The practical suggestion of this report is
that the case method of teaching is truly scientific and that the present methods of
teaching applied science are unscientific. Furthermore, as an essential feature of the
new method of teaching science, Professor Mann would combine theory with practice
much more intimately than occurs in the law schools of the present day, by requiring
the student to leam to operate the " case " under study. The student must not merely
observe and analyze the operation of the dynamo: he must also actually run it and
repair it when out of order. The method of teaching he advocates for engineering
students, while based on the same conceptions as Langdell's pedagogic innovation,
is designed to meet some of the objections commonly raised to-day against even case
method law schools.

Whatever may be thought of this contention, the subject is one of great signifi-
cance, and worthy of the attention of teachers and engineers. Engineering schools,

Vlll

PREFACE

like all institutions of learning, are slow to undertake educational experiments. It is
sometimes easier to start a new school than to try an educational experiment in an
old one. But obviously an actual experiment thoroughly carried out would be the only
satisfactory demonstration of the soundness of the case method of teaching science.
The report is published by the Carnegie Foundation as a work of cooperation with
the great engineering societies, and with the hope that the formulation of these
important enquiries and their discussion may lead to a serious effort on the part
of those having to do with engineering education to reexamine the curricula of the
schools, and to approach the problem of their improvement not only from the stand-
point of the teacher, but also from that of the practising engineer and of the employer.

Henry S. Pritchett,
President of the Carnegie Foundation.

INTRODUCTION

The Society for the Promotion of Engineering Education, at its Cleveland meeting
in 1907, invited the American Society of Civil Engineers, the American Society of
Mechanical Engineers, the American Institute of Electrical Engineers, and the Amer-
ican Chemical Society, to join the Society for the Promotion of Engineering Educa-
tion in appointing delegates to a "'Joint Committee on Engineering Education' to
examine into all branches of engineering education, including engineering research,
graduate professional courses, undergraduate engineering instruction, and the proper
relations of engineering schools to secondary industrial schools, or foremen's schools,
and to formulate a report or reports upon the appropriate scope of engineering edu-
cation and the degree of cooperation and unity that may be advantageously arranged
between the various engineering schools."

At the Detroit meeting in 1908, a resolution was passed authorizing this Com-
mittee to invite the Carnegie Foundation for the Advancement of Teaching and the
General Education Board to appoint delegates.

Notwithstanding the appropriation by the American Society of Civil Engineers
of a sum to assist in the investigation, it was found to be utterly impracticable to
carry on the work without larger funds, and the Carnegie Foundation was thereupon
urged to undertake the work on a comprehensive scale. After proper examination, the
Foundation generously acceded to this request, and finally selected Professor Charles
R. Mann to make a careful investigation and report.

In presenting Professor Mann's report, the Committee desire to state that they
have been closely associated with Professor Mann during his investigations, and have
frequently conferred with him in the progress of the work and in the different plans
adopted for securing information. Many of the conclusions reached have been dis-
cussed at public meetings of educational experts and have had the advantage of ma-
ture judgment and long experience. The views of the whole engineering profession,
widely scattered throughout the country and representing every phase of professional
activity and practice, were ascertained. The results of some of these special enquiries
were published and considered by the engineering societies ; they were both inter-
esting and surprising, and are set forth in Chapter XVI of the report.

Notwithstanding this varied experience, it was not until the Committee had the
advantage of examining advance copies of Professor Mann's report that they realized
the coordination existing between all of the different portions of the investigation,
and their bearing upon the value of the whole study.

We believe that this report possesses particular significance on account of the simple
and clear treatment of the complicated problems involved. The history of the origin
and development of the schools is concisely told, and the connection between the cur-
riculum and the changing demands of industrial activities and growth is clearly nar-
rated. If the study went no farther — and this is but the threshold of the report — we

x INTRODUCTION

believe the value of this result alone would go far toward repaying the expense of
the enquiry, liberal as that has been.

Other significant characteristics of the report are found in the discussions of the
general failure to recognize such factors as " values and cost," the importance of
teaching technical subjects so as to develop character, the necessity for laboratory
and industrial training throughout the Courses, and the use of good English.

Valuable suggestions are offered for avoiding or reducing present difficulties found
in many other directions, and all of the problems have been treated in a broad and
comprehensive spirit. No hard and fast rules are laid down for the government of
engineering education. Such a course would inevitably increase the difficulties of future
advances. Changes must be made from time to time to meet conditions as they arise,
and any attempts to solve the problems of engineering education must be of so flex-
ible a nature as to admit of improvements.

We now turn to a few of the principal points emphasized in the report. Professor
Mann has called attention to the waste occurring in educational efforts arising from
lack of coordination shown in the histories and aims of the technical schools as set
forth in the first chapter of this study.

Another point is the perplexing one of the regulation of admissions. At present
sixty per cent of those who enter the schools fail to graduate. The importance of
limiting admissions more strictly to those students who possess some aptitude for
engineering is demonstrated, and a substitution of objective tests in place of those
of a subjective character is recommended.

Another point emphasized, and one of deep importance, is that of the reorganiza-
tion of curricula which are commonly acknowledged to be much congested, and which
it is stated will continue, "as long as departments are allowed to act as sole arbiters
of the content of the courses." Plans are offered for developing particular types of
curricula suited to the environment of each school.

Emphasis is also given to the necessity for a broader training in the fundamentals
of science as an equipment for all engineers and forming a sort of " common core "
to every curriculum. With this broad training in the first and second years the stu-
dent is expected to develop some natural leaning toward a specialty, and then will
follow vocational guidance in the later stages of his education.

Among the questions that will perhaps occur to many interested in the status and
progress of engineering education, in connection with this report, are — How far will
the recommendations in the report be applicable to present conditions? and what
will be the possible influence of this study upon education and practice ? These ques-
tions are of course difficult to answer with precision. We can only form an estimate,
based upon experience and knowledge of the present chaotic condition of the schools,
arising from world-wide events over which they are called to exercise a powerful in-
fluence. There probably never was a time when the minds of teachers were so intently
alive and receptive to rapid changes, as at the present moment. This report, made

INTRODUCTION xi

under the auspices of the Carnegie Foundation and with the direct assistance of
this Committee, will be read and studied all over the country, as soon as it becomes
available. Engineering educators are already partially familiar with the trend of the
report. They, better than others, know from long experience something of the dif-
ficulties in establishing standards by which to measure the successes or failures of
their efforts to provide proper training for engineers. It may take time to convince
all that a measure, or scale, has been created by the practising engineers of the
country by which an estimate may be formed of the amount of success in engineer-
ing teaching, irrespective of the special courses involved. That scale is the improve-
ment of character, resourcefulness, judgment, efficiency, understanding of men, and
last of all, technique, as shown by students. These facts have already been published
and widely circulated, and since they became known there are probably few intelli-
gent educators who have not asked themselves the question — Am I so teaching as
to produce these results in my pupils and in the order of value specified by the en-
gineering profession ? It may perhaps be considered not unreasonable for this Com-
mittee to believe that if portions of this study have already proved of value and
interest to the schools, there is some secure foundation for thinking that the whole
report will awaken wide interest because of the applicability of its results, and that
its influence on engineering; education will be beneficial.

In addition to its possible effects on professional educators, we entertain the hope
that it will also have a wider significance as an important contribution to the gen-
eral cause of education. The publication of the study in the present emergency, when
the Government is so deeply concerned with so many vital questions connected with
educational processes, may assist also in the solution of some of the many problems
arising in connection with vocational training in the different branches of military

science.

American Society of Civil Engineers

Desmond FitzGekald, Chairman, Onward Bates, Daniel W. Mead

American Society of Mechanical Engineers
F. H. Clark, Fred J. Miller

American Institute of Electrical Engineers

C. F. Scott, Samuel Sheldon, Secretary

American Chemical Society

Clifford Richardson, Henry P. Talbot

American Institute of Chemical Engineers

J. R. WlTHROW

American Institute of Mining Engineers

Henry M. Howe, John Hays Hammond
Society for the Promotion of Engineering Education

D. C. Jackson, G. C. Anthony, C. R. Richards

Joint Committee on Engineering Education of the National Engineering Societies.

PART I
PRESENT CONDITIONS

Chapter I

THE DEVELOPMENT OF ENGINEERING SCHOOLS IN THE

UNITED STATES

During the Colonial period industrial production in America was almost wholly con-
fined to agriculture. All forms of manufacture were systematically discouraged by
acts of Parliament. Iron mining was encouraged, provided the product was shipped
to England as pig iron ; but all tools, implements, guns, gunpowder, and machinery
used in the colonies had to be purchased in the mother country. This effort to limit
American production to agriculture and raw materials was one of the chief causes of
the War of Independence.

When the supply of goods from British factories had been cut off by the non-im-
portation agreement between the colonies (1774), clothing, gunpowder, tools, and
equipment soon became scarce. An immediate need arose for skilled workers in all the
mechanic arts. Congress sought to meet this need by urging the establishment in every
colony of a Society for the Improvement of Agriculture, Arts, Manufactures, and
Commerce, and by offering premiums for the best achievement in every essential line
of industry. Enough was accomplished by these means to carry the war, with the help
of France, to a successful termination.

After the war England sought to crush the incipient American industries by sell-
ing her goods here at lower prices than were charged at home. The Confederation was
threatened by an industrial domination that seemed no less oppressive than political
domination. This crisis was met, first, by the formation of numerous societies for the
promotion of the useful arts, to encourage a spirit of enquiry, industry, and exper-
iment among the members; second, by offering premiums from state treasuries for
such improvements in the useful arts as might seem beneficial to the country; and
third, by inviting trained artisans from abroad to settle here and give America the
benefit of their training. It was on this basis that Samuel Slater, a skilled English
worker from the Arkwright factory, established at Pawtucket in 1790 the first suc-
cessful textile mill driven by water power.

The real beginnings of American engineering were made at this time under the
spur of a patriotic spirit of industrial independence. In 1793 Eli Whitney invented
the cotton gin, which determined the industrial future of the South. Oliver Evans
made the first machinery for flour mills in 1787, and in 1801 constructed the first
high-pressure steam engine. Philadelphia equipped its water works with a double
steam pump that had a capacity of 3,000,000 gallons a day, built by Nicholas I. Roose-
veldt in 1801. Six years later Robert Fulton made his famous trip up the Hudson in
the Clermont. The Santee canal in South Carolina was begun in 1786. Work was started
on the Middlesex canal in Massachusetts and on the canal joining the Schuylkill and
the Susquehanna rivers in Pennsylvania in 1793. The mechanical inventions were made

4 STUDY OF ENGINEERING EDUCATION

by Americans who had no formal engineering training; the canals were built by foreign-
trained civil engineers.

The effect of the War of 1812 was similar to that of the War of Independence. For
three years American production was stimulated by being thrown on its own resources.
This was followed by a period of stimulation due to foreign competition. By 1812
the exhaustion of the soil because of unscientific methods of agriculture was already
driving the population to seek new land in the West. There arose a loud cry both
for instruction in better methods of farming in order that the farms might not be
deserted, and for better means of transportation to the West. To meet the latter, the
Erie Canal (1817-25) was built. This was the first great achievement of American en-
gineering, because the work was done by three self-trained Americans, James Geddes,
Benjamin Wright, and Charles Brodhead.

The demand for scientific information to increase production in agriculture and
domestic manufactures is voiced in an enormous number of memorials, petitions,
and committee reports to the various state legislatures. Of these the Report of the
Committee on Agriculture presented by Jesse Buel to the New York State legis-
lature on March 29, 1823, is perhaps the most complete and expressive. This report
urges the establishment of a tax-supported school of agriculture along the lines that
had proved so successful at the Fellenberg School at Hofwyl, Switzerland. Full de-
tails of the plan, the methods, and the results to be expected are given. It was stated,
finally, that if the state would undertake the support of the school, the Hon. Stephen
van Rensselaer would donate the necessary land. The proposal was rejected by the
legislature.

The following year Mr. van Rensselaer established at Troy the pioneer school of its
kind in the United States, the Rensselaer Polytechnic Institute. At the beginning a
new type of instruction was used, but it proved too expensive. In 1829 the curriculum
was revised, a course in civil engineering added, and for a quarter of a century this
school divided with the West Point Military Academy the honor of supplying men
with scientific training to meet the country's need for engineers. Many of the early
graduates of both schools won renown in designing and building the pioneer high-
ways, bridges, canals, and railroads that led to the conquest of the West.

For engineering education the striking features of this period from 1770 to 1830
are the gradual and persistent growth of the demand for scientific information for the
purpose of increasing production, and the scanty attention given to devising ways and
means of satisfying it. After twenty-three years of keen discussion, the Rensselaer
Polytechnic Institute, which soon specialized in civil engineering, and the West Point
Military Academy, which was intended for a totally different purpose, were the only
two scientific schools in the country.

In the fifty years from 1820 to 1870 the industrial conditions in the United States
were completely reorganized. During this period the percentage of the working popu-
lation in agriculture dropped from 83 to 47.6; while in manufacturing, trade, and

DEVELOPMENT OF ENGINEERING SCHOOLS 5

transportation it increased from 17 to 31.4. In addition a new class called personal
service, claiming 18 per cent of the workers, was added and the professional group
expanded from a negligible per cent in 1820 to 3 per cent in 1870. Thus the advent
of the steam engine, the railroad, and the reaper reduced the number of farmers by
354 out of every 1000 workers, increased the number in manufacturing, trade, and
transportation by 144, and created the new trade of personal service, giving occupa-
tion to 180 per thousand. The professional group also expanded to include 30 per thou-
sand. The number of patents increased in this same period from about two hundred
to over thirteen thousand per year.

A high degree of engineering ability was required to accomplish this industrial revo-
lution. Among the civil engineers who took part were a number who had the advan-
tage of scientific training either at Rensselaer or at West Point. But in the long list of
mechanical engineers who built the locomotives, the steam engines, the machine tools,
and the farm machinery, it is difficult to find a single one who had any special school
training for the work. As science developed and machinery became more and more
complex, the need of special training for the mechanical engineer became more press-
ing. Hence the period from 1820 to 1870 may be said to have indicated the value of
special training for the civil engineer, and to have defined the need for trained me-
chanical engineers for industrial production.

Scattered here and there in the vast mass of pamphlets, petitions, memorials, and
reports, addressed to various legislative bodies during these years, urging the estab-
lishment of state schools for training in mechanic arts, there appears another concep-
tion that added inspiration to the industrial demand for schools of science. It is to the
effect that thorough training in science must not only increase production, it must
also raise agriculture and mechanic arts to the rank of the learned professions like the-
ology, medicine, and law. In the Buel report just mentioned it is urged that because
agriculture is the basis of all industry, it should be elevated to the rank of a liberal
and fashionable study. The well-known phrase in the Morrill Act — "to promote
the liberal and practical education of the industrial classes in their several pursuits
and professions in life " — implies the same conception. Some of the earliest engineer-
ing schools were called Industrial Universities.

It thus appears that the clearly defined practical demand for training in science as
an aid to industrial production was blended with a vaguely defined ideal of liberal
training thru science. These were the forces that gave scope to engineering in America
and compelled the development of the schools.

At first this development was very slow. In spite of the widespread recognition of
the need, the Rensselaer Polytechnic Institute remained for twenty-three years the
only school of its kind. At length in 1847, thru private benefactions, the Lawrence
Scientific School was established at Harvard and the Sheffield Scientific School at
Yale. The University of Michigan also voted that same year to offer a course in civil
engineering. These were the only additional engineering schools opened before the

6 STUDY OF ENGINEERING EDUCATION

Civil War, and they had a hard struggle for existence because their aims seemed dan-
gerous to academic traditions.

During the Civil War Congress passed the Morrill Act (1862) granting federal
aid to the several states for founding colleges of agriculture and mechanic arts. State
legislatures that had for years been deaf to all appeals now quickly accepted the fed-
eral grants and voted to create the new type of school. Established colleges caught
the spirit and added departments of engineering. The four schools of 1860 increased
to seventeen by 1870, to forty-one by 1871, to seventy by 1872, and to eighty-five by
1880. Now there are one hundred and twenty-six engineering schools of college grade,
of which forty-six are land grant colleges operating under the Morrill Act, forty-four
are professional schools in universities, twenty are attached to colleges, and sixteen
are independent. The number of students has increased from fourteen hundred in 1870
to thirty-three thousand in 1917, and the annual number of graduates in engineering
from one hundred in 1870 to forty -three hundred. Then there were less than three
graduates per million population, now there are about forty-three per million.

The rate of growth of the schools has not been constant. In the decade 1870-80
the number of graduates per million population increased from three to four. The
figures for the successive decades are:

Decade Graduates per Increase per

ending million million per

year

1860 1

1870 3 0.3

1880 4 0.1

1890 10 0.6

1900 17 0.7

1910 36 1.9

1916 43 1.1 (6 years)

It is to be noted that growth was rapidly accelerated from 1870 to 1910, especially
during the last decade. Since 1910 the growth has been less phenomenal.

This increase in the number of graduates indicates another important change in
school conditions. In 1870 the ratio of graduates to the total number of students was
one hundred to fourteen hundred, or one to fourteen. In 1915 this ratio was forty-three
hundred to thirty-three thousand, or one to seven and seven-tenths. This indicates
that a much larger proportion of the students now take the full course ; that is, there
are relatively fewer stragglers. Back in the '70's the mortality was in many cases as
high as 90 per cent, that is, only ten out of every hundred freshmen continued thru
the whole course. Now the highest mortality among the schools visited 1 is 75 per cent,
and the average for the twenty schools is 60 per cent. Hence the schools have not
only increased in size, but their work has been better systematized and standardized.

From figures published by Mr. A.M.Wellington in the Engineering News for 1893

1 See page 32.

DEVELOPMENT OF ENGINEERING SCHOOLS 7

and from data presented in the Reports of the United States Commissioner of Edu-
cation it appears that the total number of engineers graduated in the succeeding
decades was approximately

Prior to 1870 866

1871-1880 2,259

1881-1890 3,837

1891-1900 10,430

1901-1910 21,000

1911-1915 17,000

The total number of engineering degrees granted in the United States up to 1915
has therefore been about 55,000. In 1911 the eleven technical high schools of Ger-
many were graduating engineers at the rate of 1800 per year, and the total number
of graduates up to that date was 14,215.

In addition to the hundred and twenty-six engineering colleges just discussed there
are forty-three degree-giving institutions that pay some attention to engineering
work. Of these, eighteen are arts colleges that claim to give " two years of engineer-
ing;" sixteen advertise engineering courses,but have neither the faculty nor the equip-
ment to give them well; four are military schools which occasionally graduate a civil
engineer; and five are privately owned institutions which endeavor to teach engineer-
ing to all who apply, without regard to previous academic training, and grant a con-
siderable number of degrees on this basis. There are also many excellent schools, like
the Wentworth Institute, the Lowell Institute, and the Franklin Union in Boston ; the
Baltimore Polytechnic Institute, Pratt Institute, the Bliss Electrical School in Wash-
ington, the Casino Night School in Pittsburgh, the Dunwoodie Institute in Minne-
apolis, the Cogswell Polytechnic in San Francisco, and the numerous technical classes
of the Young Men's Christian Association in various places, that teach engineering
but make no pretense of granting college degrees. These schools are meeting a real
need in a genuinely effective way without departing from their vocational purpose
or confusing the educational situation by granting degrees.

The first schools offered only one course — civil engineering. The Massachusetts
Institute of Technology opened in 1865 with six curricula leading to degrees in civil,
mechanical, and mining engineering, practical chemistry, architecture, and general
science. Now the specialized courses at the Institute have increased to fifteen and nu-
merous other specialties are offered at other schools. The additions include all phases
of engineering, such as chemical, sanitary, metallurgical, marine, cement, electro-
chemical, textile, automobile, aeronautical, ceramic, highway, agricultural, and en-
gineering administration. The work of the schools has thus increased in scope and
become more complex.

Unfortunately it is not possible to give any even reasonably trustworthy figures
as to the resources and the equipment of all the engineering schools, because so many
of them are inextricably bound up with colleges and universities. The United States

8 STUDY OF ENGINEERING EDUCATION

Bureau of Education still treats engineering under the general heading "Universities,
Colleges, and Technological Schools." In a university with several schools it is a very
perplexing problem to determine how much of the total equipment and expense
should be charged against any one division such as engineering. In order to secure
some estimate of the cost and resources of engineering education, as distinguished
from college education, the following summary of the conditions at the sixteen inde-
pendent schools that devote all their resources to engineering alone is presented. The
figures are from the Report of the United States Commissioner of Education for 1916.

In the sixteen independent schools there were, during the year 1914-15, 762 in-
structors and 6807 students; or on the average one instructor to nine students. The
total expenditure for the year was $2,348,000, or an average of $345 per student.
The plants were valued at $14,047,000, the equipment at $3,022,000, and they had
endowments amounting to $12,985,000.

These sixteen schools are widely distributed over the country, the number of in-
structors varies from 5 to 290, the number of students from 26 to 1816, the value of
the plant from $98,000 to $6,300,000, the endowment from nothing (at state schools)
to $3,236,000, the value of equipment from $51,000 to $478,000, and the cost per
student year from $204 to $1333. Seven are state institutions and nine are on pri-
vate foundations. It is therefore not unreasonable to assume that the conditions that
maintain for the 6807 students of these schools are typical of conditions for the 33,000
students in all schools. On this assumption, the total annual expenditure for the en-
gineering instruction of 33,000 students at $345 per year is $11,385,000. On the same
assumption the total value of the plants used for this purpose is about $68,000,000,
the equipment is worth about $15,000,000, and the endowment is about $63,000,000.
Altho these figures are merely estimated, they are as trustworthy as any that are
available under present conditions.

Since the engineering schools entered upon their remarkable development fifty years
ago the conditions of industrial production have changed, new fields of engineering
have been developed, the professional ideals of the engineer have grown more defi-
nite, laboratory work has won recognition as an essential element of all instruction
in science, and educational theory and practice have been brought within the range
of scientific test. Under these conditions numerous fundamental questions concerning
engineering education have of necessity emerged. Do we need fewer or more schools?
Is the curriculum too long or too short? Should the engineering school be made a
graduate professional school? What are the present demands of science, of industry,
and of education? How well are the schools meeting these demands? What changes,
if any, seem desirable?

The answers to questions like these are at present both vague and unconvincing.
This study endeavors to define a number of the more important problems of engi-
neering education, and to suggest policies and methods that promise to be fruitful in
working toward more satisfactory solutions.

Chapter II

THE AIMS AND CURRICULA OF THE EARLY SCHOOLS

Engineering schools are so obviously a result of the needs of industrial production
that the conceptions on which they are founded are necessarily much the same for all.
Hence three schools — the Rensselaer Polytechnic Institute (1824), the University
of Illinois (1867), and the Massachusetts Institute of Technology (1865) — are here
selected as typical expressions of the general movement, because the documents
relative to the founding of these institutions state their ultimate aims with striking
clearness.1

From the evidence presented in the History of the Rensselaer Polytechnic Institute
it appears that in planning his school Mr. van Rensselaer was strongly influenced by
two foreign institutions: namely, the Royal Institution of Great Britain, which was
established by Count Rumford in 1799 as an offshoot of the Society for Increasing
the Comforts of the Poor, and was intended to facilitate the general introduction
of useful mechanical inventions; and the Fellenberg School at Hofwyl, Switzerland,
which sought to educate the children of the poor thru manual work in accordance with
methods devised by Pestalozzi. As stated in the official notice of the establishment
of the school, its aim was to furnish instruction "in the application of science to
the common purposes of life," in order to train men to teach "the sons and daugh-
ters of farmers and mechanics . . . and who will be highly useful to the community
in the diffusion of a very useful kind of knowledge, with its application to the busi-
ness of living."2 Prior to 1829 no mention of professional engineers is made beyond
the remark in the Buel report (page 5), that because agriculture is the basis of
all industry, the state should elevate it "to the rank of a liberal and fashionable
study."

The educational conceptions of the land grant colleges developed gradually during
the quarter century from 1825 to 1850. They are expressed in numerous memorials
to the Federal Congress, petitions to state legislatures, and resolutions of societies for
the promotion of agriculture and the mechanic arts. An analysis of the more impor-
tant of these documents and of the debates in Congress on the several Morrill acts
has just been published by the Carnegie Foundation for the Advancement of Teach-
ing in Dr. I. L. KandePs Bulletin on Federal Aid for Vocational Education. These
conceptions reached their fullest expression in the meetings of the Illinois Industrial
League in 1851-53. A very complete statement of the aims of the new schools is made
in a memorial sent by the league to the state legislature in 1852.3

1 Cf. P. C. Ricketts : History of the Rensselaer Polytechnic Institute, New York, Wiley, 1895 ; W. B. Rogers : Objects
and Plan of an Institute of Technology, Boston, 1861 ; E. J. James : The Origin of the Land Grant Act of 1862, Uni-
versity of Illinois Bulletin, vol. viii, No. 10, November, 1910.

2 Ricketts, loc. cit., pages 6-10.

5 E. J. James, loc. cit., pages 90-95.

10 STUDY OF ENGINEERING EDUCATION

In this document the memorialists state that as members of the industrial classes
personally engaged in agricultural and mechanical pursuits they have forced on their
attention constantly the fact that from one-third to one-half of the products of the
state are annually sacrificed because of the worker's ignorance of scientific laws and
methods of work. This appalling loss might be prevented if there were established a
suitable industrial university to teach what is already known and to carry on inves-
tigations of new problems. To secure these ends, it is necessary to establish industrial
universities which shall give the industrial classes a thorough scientific and practical
training equivalent in all respects to the literary training already given so success-
fully and abundantly as preparation for the so-called learned professions.

The educational aims and methods required for this purpose were stated forcefully
by Professor J. B. Turner in two addresses which are reprinted in President James's
pamphlet. In these Professor Turner makes clear that the conventional forms of in-
struction in literary colleges are not suitable for industrial training. Book learning
alone does not suffice, but must be supplemented by a study of things. The former
produces "laborious thinkers," while industry needs "thinking laborers.'11 Nor are
schools that teach the application of science to the art of killing men fitted to teach
scientific methods of feeding, clothing, and housing men. A special type of instruction
is needed, — one that analyzes practical problems and sets the student "to earnest and
constant thought about the things he daily does, sees, and handles, and all their con-
nected relations and interests." Men secure true discipline best by "continued habits
of reading, thought, and reflection in connection with their several professional pur-
suits in after life." In this way schools can "teach men to derive their mental and
moral strength from their own pursuits." There are "more recondite and profound
principles of pure mathematics immediately connected with the sailing of a ship, or
the moulding and driving of a plow, or an axe, or a jack-plane than with all three of
the so-called learned professions together," and these should be made objects of study
in order to "extend the boundaries of our present knowledge in all possible practical
directions."

It is to be noted that the aim of the founders of the "Illinois Industrial Univer-
sity" was increased production and professional recognition. The conception of the
need and the methods of training farmers and artisans for increased production in such
a way as to elevate their callings to the rank of professions is, however, much more
definitely expressed than in the case of Rensselaer. The need for expanding the bounds
of knowledge by scientific investigation has also been perceived.

At the Massachusetts Institute of Technology the aims and methods were defined
by its first president, William B. Rogers. The seeds of the conception of a polytechnic
school were planted in him during his first experience in teaching apprentices at the
Mechanics Institute in Baltimore in 1827. The growth of the plan was fostered by
his share in the preparation, in 1837, of a petition for the Franklin Institute to the
Pennsylvania State Legislature praying for the establishment of a state school of

AIMS AND CURRICULA OF THE EARLY SCHOOLS 11

applied science, and by his formulation for his brother in 1846 of a "Plan for a Poly-
technic School in Boston."1

The final statement of his conceptions was printed in his Objects and Plan of an
Institute of Technology, Boston, 1861. In this pamphlet, which was issued to attract
support for the enterprise, the argument is this: "Material prosperity and intellectual
advancement are felt to be inseparably associated " (page 1). But material prosperity
requires intelligence in industrial production, and this in turn demands "that sys-
tematic training in the applied sciences, which can alone give to the industrial classes a
sure mastery over the materials and processes with which they are concerned. Such a
training, forming what might be called the intellectual element in production, has, we
believe, become indispensable to fit us for successful competition with other nations
in the race of industrial activity, in which we are so deeply interested "" (page 20). Such
a training should not only impart knowledge and develop habits of exact thought;
it should also "help to extend more widely the elevating influences of a generous
scientific culture." There should also be included "a department of investigation
and publication, intended to promote research in connection with industrial science "
(page 6).

It appears from the foregoing pages that from the beginning the engineering
schools have had a clear conception of their functions. They themselves understood
that their ultimate aim was increased industrial production, and that their special
contribution to this end was systematic instruction in applied science. In addition
they believed that if this instruction were given with the proper spirit, engineering
would become a learned profession and scientific research a recognized necessity.

The means employed at Rensselaer in 1824 to secure these ends were novel and
unique. The first curriculum required one year for its completion, and was divided
into three terms. School opened the last week in July with an "experimental term,""
during which the students gathered botanical, mineralogical, and zoological speci-
mens, visited shops and factories near the school, and discussed with the class the sig-
nificance of what they had collected and observed. In addition each student gave a
number of lectures on chemistry and natural philosophy, fully illustrated by experi-
ments performed with his own hands.

During the second term, from the end of November to the first of March, the stu-
dents reviewed in class the sciences taught in the fall, and in addition studied rhetoric,
logic, geography, and mathematics. The spring term lasted from the first week in
March to the end of June. For six weeks the work consisted of lectures by the stu-
dents on experimental philosophy, chemical powers, substances non-metallic, metal-
loids, metals, soils, and mineral waters. For the remaining nine weeks the students
were exercised in the application of the sciences to practical projects and in the study
of engineering works in the neighborhood of the school.

1 William Burton Rogers: Life and Letters, vol. i, pages 420-427.

12 STUDY OF ENGINEERING EDUCATION

In the catalogue published in 1828 the term "civil engineering" occurs for the first
time as one of the topics on which the senior professor would lecture. The catalogue for
1831-32 states that the second sub-term would be devoted to "Trigonometry, Navi-
gation, and the Elements of Civil Engineering.'" In 1835 the legislature was petitioned
to amend the charter of the school so as to permit the addition of a " department
of mathematical arts, for the purpose of giving instruction in engineering and tech-
nology." Graduates of this department were to receive the degree of Civil Engineer.
This degree was awarded for the first time in the United States to four members of
the class of 1835.

It will be noted that during the first ten years the Rensselaer Institute evolved from
a school of natural science designed to train teachers able to spread among farmers
and artisans scientific information that would assist them in production, into a school
of engineering and technology. The changes in curriculum that accompanied this evo-
lution are striking. The full program for 1835 is printed in President Ricketfs His-
tory. A comparison of this curriculum with the first one shows that the "experimental
term" at the beginning has disappeared. The school year begins in November with
class work in "practical Mathematics, Arithmetical and Geometrical," combined with
"extemporaneous speaking on the subjects of Logic, Rhetoric, Geology, Geography,
and History," and "Lectures on National and Municipal Law "by the senior professor.
The second term of twenty-four weeks devotes eight weeks to practice in the use of
instruments; eight weeks to study of the theory of mechanical powers, bridges, arches,
canals, etc. ; four weeks to calculations of the quantity of water per second supplied
by streams with reference to their use for various practical purposes; and four weeks
to inspection of " mills, factories, and other machinery or works which come within
the province of mathematical arts."

This evolution of the curriculum was carried one step farther in 1849, when the
director, Professor B. Franklin Greene, went abroad and made a careful study of French
technical schools. On his return the course at Rensselaer was lengthened to three years
and a new curriculum adopted. This curriculum is a combination of the curricula
of L'Ecole Centrale des Arts et Manufactures, which plans to train civil engineers,
directors of works, superintendents of factories, and the like; and L'Ecole Poly tech-
nique, which prepares for certain government technical institutions. The first half of
the curriculum was intended to lay the general scientific basis of all engineering, and
the second half to develop proficiency in some special line. This curriculum is given
here in full along with the first three years of the first curricula of the Massachusetts
Institute of Technology (1865) and the University of Illinois (1867).

AIMS AND CURRICULA OF THE EARLY SCHOOLS

Rensselaer

Massachusetts Institute
First Year

University of Illinois

Algebra, geometry,

Algebra, solid geometry,

Algebra, geometry,

trigonometry

General physics

Elementary mechanics

Geometrical drawing

Drawing — mechanical and

Descriptive geometry

freehand

and drawing

English

English or

Foreign language

Surveying

Chemistry — inorganic

History

Botany

Second Year

Botany

Analytics, calculus

General physics

Physics

Chemistry

Descriptive geometry,

Descriptive geometry , machine

Descriptive geometry,

machine drawing

and freehand drawing

drawing

Topographical and hydro-

Surveying — plane

Surveying

graphical surveying

English

Foreign language

Mineralogy

Astronomy, navigation

Zoology

Geology

Third Year

Mechanics

Calculus, analytic and

Calculus, analytic

applied mechanics

mechanics

Practical astronomy

Spherical astronomy

Descriptive astronomy

Geodesy — trigonometrical,

Surveying — roads,

Railroad surveying

railroad and mine surveying

railroads and canals

Descriptive geometry — per-

Descriptive geometry —

Shades, shadows, persp

spective, topographical

masonry and carpentry

drawing, stereotomy

Industrial physics

English

Physics

Practical geology

English

Physical geography

Drawings, plans, etc.

Machines

Foreign languages

Chemistry

Constructions — theory of
structures, bridges,
hydraulic works, railways

Mining

Metallurgy

Philosophy of mind

Computation of earth
work and masonry

Hydrographical surveying

The curricula at the Massachusetts Institute and the University of Illinois did not
evolve thru a period of years. They were simply adopted in the form given. How
much influence the Rensselaer curriculum had in shaping the others it is impossible
to say. Internal evidence suggests that this influence was large.

14 STUDY OF ENGINEERING EDUCATION

A comparison of these three curricula indicates that the general plan is very much
the same in all. The third year at Rensselaer contains some of the technical courses
that appear in the fourth year of the other two schools. But they all agree in placing
mathematics, drawing, descriptive geometry, physics, and chemistry before the work
in applied science. In other words, they all sought to meet the demand for increased
production by first teaching the necessary theoretical science and then showing how
to apply it. This was the plan in the French schools, and it was transplanted without
change to America. It remained and still is the prevailing conception underlying the
curricula of our engineering colleges.

But tho these three curricula agree in general plan, the methods of handling the
work in the three schools were quite different. The system of instruction by the stu-
dents, which has already been described, had by 1865 given place at Rensselaer to the
system now used there of interrogations and blackboard demonstrations. Field trips
and the observation of industrial processes in action in neighboring shops had been
discontinued. These changes were made necessary by the increased attendance at the
school.

At the University of Illinois the instruction in theory was given by lectures and
recitations from textbooks combined with the use of plates and models. This was in
a way coordinated with shopwork, in that machinery planned in the drafting room
was actually constructed in the shops. Much of the early equipment, including an
eight horse power steam engine, was constructed by the students in this way. Oppor-
tunities for manual labor for pay were offered the students, and many of them earned
enough to meet their expenses by making furniture and apparatus in extra hours of
shopwork. A chemical laboratory was part of the earliest equipment.

At the Massachusetts Institute there was no shopwork until 1877. The lecture-
recitation method of instruction was used in all class work, but this was supplemented
by laboratory work in physics and mechanical engineering. The first laboratory for
undergraduate instruction in physics was opened here by Professor E. C. Pickering
in 1869. The organization and many of the experiments he devised are still used in
physics laboratories. The teaching was necessarily very like that in other colleges
because all the professors had been trained in existing schools devoted mainly to lit-
erary studies.

Chapter III

THE STRUGGLE FOR RESOURCES AND RECOGNITION

The Rensselaer Institute began work in 1824 in a rented house with several hun-
dred dollars worth of equipment, all of which was supplied by the Hon. Stephen van
Rensselaer. There were 25 students the first year, each of whom paid $36 tuition, and
these fees were paid to the two professors as their remuneration. During the first
eight years the founder paid about half the cost of maintenance — a total of $22,000.
By that time the value of the equipment had increased to $4000. For twenty years
work was conducted in rented quarters. Finally, in 1844, a house and lot were given
the school by the city of Troy on condition that a fund equal to the value of the
property be raised for maintenance. For this purpose Mr. William P. van Rensselaer
gave $6500, and $1150 was raised by subscription to build a chemical laboratory.
That year there were 75 students, the tuition was $40 a year, and the total value of
the plant was appraised at $15,850.

In 1850 the course was lengthened to three years and the tuition raised to $60 a
year. Tuition was increased to $100 in 1857, to $150 in 1864, and to $200 in 1866,
at which figure it still remains. In 1851 the state gave the institution $3000 and ten
years later $3750, for general purposes. After the fire that destroyed the buildings
in 1862, the state gave $10,000 to help rebuild, and this was increased by a further
grant of $15,000 in 1868. From 1846 to 1854 the school was classed as an academy
by the state Board of Regents and as such received $744 in all as its share of the lit-
erature moneys distributed to the academies of the state. These figures represent the
entire support granted by the state, a total of $32,494.

From these facts it appears that prior to the beginning of the Civil War this insti-
tution owed its existence almost wholly to private benefactions and to the devoted
services of its staff, whose enthusiasm and self-sacrifice made the continuance of the
work possible with meagre equipment and slender resources. The experience of other
schools of this period was similar. At Yale the scientific school was started in 1847,
when Professors Silliman and Norton opened a laboratory for practical instruction
in the application of science to the arts of agriculture. Professor Norton was permit-
ted to hold the chair of agricultural chemistry on condition that he should draw no
salai-y ; this entire enterprise was housed mainly in the chapel attic until 1860, when
Joseph E. Sheffield supplied the funds needed to place it on a permanent footing. The
Lawrence Scientific School at Harvard was more fortunate in that its early financial
support was assured by the gift of Mr. Abbott Lawrence in 1847. The engineering
department at the University of Michigan was the one state-supported school of
engineering before 1860, but no engineei-ing degrees were granted there until 1861.

Science and engineering in America owe a great deal to the Rensselaer Polytechnic
Institute. Founded at a time when the great masses of the people knew little about

16 STUDY OF ENGINEERING EDUCATION

science and cared less, it quietly and persistently trained teachers and engineers who
diffused scientific information and built many of the railways, roads, and bridges
that were essential to the success of the industrial evolution. By 1860 it had grad-
uated 318 men, while from the West Point Military Academy, for many years the
only other school for scientific training, but 200 of the graduates entered engineer-
ing before 1860. The Lawrence School at Harvard graduated 49 men before the Civil
War, in the face of an unconcealed disdain on the part of the regular faculty.

It is a very striking fact that before the Civil War so little progress was made in the
establishment of schools of science. Altho there were many far-seeing men who urged
the need of them in memorials, addresses, and petitions to legislatures, there was little
action before 1860. But a great change occurred during the strife and turmoil of
battle. Congress passed the Morrill Act in 1862, thereby creating in each state a fund
for the establishment of a college " for the liberal and practical education of the indus-
trial classes in their several pursuits and professions in life." In 1861 the Massachu-
setts State Legislature granted a charter and a tract of land to the Massachusetts
Institute of Technology, and in four years over $100,000 had been raised by subscrip-
tion for a building, and the school had opened for work. The School of Mines at
Columbia (1864), the Thayer School at Dartmouth (1867), Cornell University (1867),
the Worcester Polytechnic Institute (1868), were established at this time. In addition
the states of Illinois, California, Iowa, New York, New Jersey, Maine, Michigan, New
Hampshire, Pennsylvania, Tennessee, Vermont, and Wisconsin accepted the terms of
the Federal land grant of 1862 before 1870.

But altho after the Civil War money began to flow toward the support of techni-
cal education, the financial struggles of the schools were by no means ended. At the
Massachusetts Institute in 1868, in spite of stringent economy, the total income of
the school was $34,230 and the total expense $42,650. The deficit had to be made up
by subscription among the friends of the project. At this time the tuition was $100
for the first year, $125 for the second, and $150 each for the third and fourth. But
the total cost per student per year was $250. At Harvard it was then $180, at Yale
$126, at Columbia $115, at Brown $178, at Amherst $80, and at the University of
Pennsylvania $42. At the new Illinois Industrial University, with a total income in
1869 of $35,000 and 156 students, it was $224, and there were no tuition fees. In other
words, the schools soon found that instruction in science was not only new, but more
expensive than regular college teaching, because of the relatively high cost of labora-
tory work and the small number of students.

In the thirty years from 1870 to 1900 the schools slowly grew stronger and more
secure. The plant at Illinois increased in value from $186,000 in 1870 to $1,300,000
in 1900, or at the average rate of $37,000 a year. At the same time the annual income
increased from $35,000 to $483,000, or at the average rate of about $15,000 a year.
The student increase during this period was from 156 to 1756, the average rate being
53 per year.

STRUGGLE FOR RESOURCES AND RECOGNITION

The complete figures for the typical schools, compiled from the early records and
the Reports of the United States Bureau of Education for 1900 and 1916, are given

in the following table:

Value of Plant

1870

1900

1916

Increase

Increase per year

1870-1900

1900-16

1870-1900

II
1900-16

Ratio —

Illinois
Mass. Inst.
Rensselaer

$186,000

400,000

50,000

$1,300,000
911,000
240,000

$5,152,000
6,778,000
1,521,000

$1,114,000
511,000
190,000

$3,852,000
5,867,000
1,281,000

$37,000

17,000

6,300

$240,000

367,000

80,000

7
22
12

Annual Income

Illinois

$35,000

$483,000

$2,209,000

$448,000

$1,726,000

$15,000

$108,000

Mass. Inst.

45,000

348,000

817,000

303,000

469,000

10,100

29,300

Rensselaer

19,000

49,632

225,000

30,000

175,000

1,000

11,000

Number of Students

Illinois

156

1,756

5,523

1,600

3,767

235

Mass. Inst.

167

1,178

1,816

1,011

638

1.2

Rensselaer

125

250

545

125

295

4.5

From these figures it appears that the resources and attendance increased steadily
but moderately during the period from 1870 to 1900. Since 1900 the development has
not only been rapid; but the buildings, equipment, and expenditures have increased
much more rapidly than the number of students. Because of this the total expendi-
ture per student per year has practically doubled since 1900, and every institution
in the country is finding it yearly more difficult to live within its income.

The above figures, while as trustworthy as any that can be obtained, are not accurate
to within 5 per cent or so. They, however, indicate the general drift clearly enough. In
the decade from 1871 to 1880 private benefactions to education averaged $6,000,000
a year. In the past decade they have averaged $26,000,000 a year. In like manner total
expenditures for education in the United States have increased from about $75,000,000
a year in 1870 to $240,000,000 in 1900 and to nearly a billion in 1916. The yearly
increase up to 1900 was about $5,500,000; since then it has been $48,000,000, or

nine times as great.

This growth of the engineering schools in size and resources has been closely par-

STUDY OF ENGINEERING EDUCATION

alleled by the development of the engineering profession and of the manufacturing
activities of the country. As has been pointed out (page 5), the elevation of the
mechanic arts to the rank of a learned profession has always been one of the con-
scious aims of instruction in applied science. This aim was very vague indeed when the
Rensselaer Polytechnic Institute was founded, for at that time there was no engi-
neering profession to define professional standards as a guide to the schools.

The first effort toward a more specific definition of the profession was made in 1839
by Benjamin Latrobe, John F. Houston, Benjamin White, and others, when they tried
to establish a national society of civil engineers. This effort was not successful. The
present American Society of Civil Engineers was established in 1852 and held its first
national convention in 1869. The mining engineers attained this same degree of pro-
fessional consciousness in 1872, when the American Institute of Mining Engineers
was founded. The American Society of Mechanical Engineers was established in 1883,
and the American Institute of Electrical Engineers in 1884.

The Census Reports are no more satisfactory concerning engineering than are the
Reports of the United States Bureau of Education (page 17). The Report for 1850 lists
512 civil engineers. In 1860 the corresponding entry is 27,437 civil and mechanical
engineers, with a footnote stating that this includes stationary engine and locomotive
engineers. In 1870 the heading is "electricians, engineers (civil, etc.), and surveyors
7,374." Under this heading the number in 1880 is given as 8261 ; in 1890 it is 43,239,
and in 1900 it has increased to 93,956. The several branches of the profession are
recognized for the first time in the 1910 report, which enumerates 14,514 engineers
(mechanical), 6930 mining engineers, 52,033 civil engineers and surveyors, and 135,519
electricians and electrical engineers — a total of 208,996. Probably not more than
80,000 of these engineers enumerated by the census could qualify for membership in
any of the professional societies mentioned, which now have about 30,000 members.
Recently a number of new engineering societies have been organized, representing
cement, automobiles, electric light, electric traction, etc. The total membership in all
the societies having headquarters in the Engineering Societies Building in New York
is about 53,000.

The rate of growth of the engineering societies is shown in the following table:

Founded

Membership

Increase

Increase per year

Ratio —

1900

1916

Origin-1900

1900-16

0n'Gf!'n-1900

1900-16

Civil Engineers
Mining Engineers

1852

1872

-2-227
2661

7909
5234

1984

(since 1810)

2661

5682
2573

66
95

355
161

5
1.7

Mechanical Engineers

1883

1951

6931

1951

4980

114

311

2.8

Electrical Engineers

1884

1273

8212

1273

6939

434

STRUGGLE FOR RESOURCES AND RECOGNITION 19

These figures indicate that the professional societies, like the schools, have grown
much more rapidly since 1900. This probably does not result so much from mere increase
in the total number of engineers in the country, as from an awakening and expan-
sion of professional consciousness. The establishment of the Engineering Foundation
in 1915, the cooperation of the engineering societies with the National Academy of
Science in the National Research Council, the bill to charter an American Academy
of Engineers introduced into Congress in 1917, and the recent discussion of the status
of the engineer also indicate that the engineers have only just reached that state of
professional consciousness where they are able to define their status among the learned
professions. This definition is now in process of formulation ; and until it is announced,
it is unreasonable to expect the statisticians at the Census Bureau or the Bureau of
Education to distinguish clearly between the professional civil engineer and the sur-
veyor or between the electrician and the electrical engineer.

The part played by the colleges in this development of professional spirit may be
estimated from the fact that the various schools had graduated 866 engineers up to
1870, or less than one-ninth of the 7374 practising engineers in the country at the
time. As indicated on page 7, the total number of engineering degrees granted in
the United States has been approximately 55,000. Since a number of these graduates
have died and perhaps a fifth of them have gone into other lines of work, it is safe to
say that there are not more than 40,000 graduates of Amei'ican engineering colleges
in engineering practice to-day. If the number of professional engineers is approxi-
mately 80,000, it follows that now possibly about one out of every two is a college
graduate. Since this ratio was only one in eight or nine in 1870, the magnitude of
the contribution of the schools to the development of the profession is obvious.

The growth of the second powerful influence on the development of the engineer-
ing schools — the manufacturing industries — is indicated by the following facts : The
total value of manufactured products in the United States in 1870 was 3400 million
dollars. In 1900 the value was 13,000 million dollars, and in 1916 it was 32,200 mil-
lion dollars. The increase in value of manufactured products for the period 1870—
1900 was therefore 9600 million dollars, or at the average rate of 320 million a year.
In the sixteen years from 1900 to 1916 this increase was 18,200 million dollars, or
at the average rate of 1138 million a year. Hence, like the schools and the profes-
sional societies, the manufacturing industries have developed much more rapidly in
the twentieth century than in the nineteenth.

The attitude of these industries toward the college-trained man is indicated by
the fact that of the 4622 technically trained men now employed by 98 representative
manufacturing establishments 1992, or 43 per cent, have engineering degrees. The
highest ratio is in the field of metal refining, where 87 per cent of the technical men
are college graduates. The lowest ratio is in the automobile trade, where only 49 out
of 186, or 24 per cent, are college- trained men. In shipbuilding the ratio is 48 per
cent, 359 out of 735, and in machinery and machine tools it is 41 per cent, 836 out

20 STUDY OF ENGINEERING EDUCATION

of 2043. In response to the question "Do you employ men graduated from engineer-
ing colleges in preference to men trained mainly thru practical experience?" 60 out
of 120 firms answered "yes;" 40, or one-third of the number, answered "no;" and
20, or one-sixth of the whole number, expressed no preference.

It is difficult to interpret the interplay that has been going on among industry,
science, and engineering. At the close of the Civil War science had but scant recog-
nition either in educational institutions or among the masses of the people. Now it
has assumed a commanding position because of the transformations it has wrought
in the daily life of every one thru its varied and fruitful inventions. In this develop-
ment there has been no regular procedure, no well-defined organization. It has been
a matter of independent action and individual effort. Sometimes it was the college
professor of science, pure or applied, sometimes it was the inventor or the professional
engineer, and sometimes it was the manufacturing industry that took the initiative,
conceived the new idea, or made the new discovery, and sought the assistance of
the others in realizing it in practice. Now evidences are multiplying to show that
the time has come for a clearer definition of the relations among research, instruc-
tion, engineering practice, and industrial production. How to coordinate these ele-
ments most effectively is a large and pressing problem. Further consideration of the
meaning of this problem to the engineering schools is given in Chapter XII.

Chapter IV

THE DEVELOPMENT OF THE ENGINEERING CURRICULUM

INTO ITS PRESENT FORM

In the fifty years that have elapsed since the curricula described in the second chapter
were established a number of striking changes have taken place. The general nature
of these changes is indicated in the following tables, which give the data for two of
the schools selected as typical. The Rensselaer Polytechnic Institute has been omitted
because its early programs do not give the number of hours per week assigned to the
various subjects.

Entrance Requirements

Massachusetts Institute of Technology

1870

1914

Arithmetic
Geography

Algebra to quadratics

Algebra A

160 hours

Algebra B

160 hours

Plane geometry

160 hours

Solid geometry

160 hours

English grammar

English composition
English literature
Physics

French

240 hours

German

240 hours

Electives

University of Illinois

Arithmetic
Geography

Algebra to quadratics

Algebra A

1 unit1

Algebra B

\ unit

Plane geometry

1 unit

Solid and spherical geometry

\ unit

English grammar

English composition

1 unit

English literature

2 units

United States history

Physics

1 unit

Electives

8 units

In 1867 admission was by examination. Graduation from high school was not men-
tioned, the sole requirement being ability to meet the tests and an age limit of 1 6 years.
Admission is still by examination at the Massachusetts Institute of Technology, while
at the University of Illinois it isnowmainlv by certificate from accredited high schools.

It will be noted that arithmetic and geography are no longer required, probably be-
cause it is assumed that they have been satisfactorily completed in the grammar school.

1 The unit is generally defined as one-quarter of a year's work in a secondary school.

22 STUDY OF ENGINEERING EDUCATION

The number of examinations (or subjects required) has increased from 5 or 6 to 8 or
10. The amount of algebra, geometry, and English required has been increased byfrom
50 to 300 per cent. The content and methods of instruction in the various high school
units have also been carefully defined and standardized by the College Entrance Exam-
ination Board, the National Educational Association, and several other associations
in which colleges and secondary schools are represented.

These changes are the direct result of the development of the public high schools.
Altho the average age of entrance to college has remained constant at about 19 years,
the present freshman has had more instruction and more highly systematized instruc-
tion in more subjects than was possible before the recent striking development of sec-
ondary education.

At present all but 4 of the 126 engineering colleges require at least 14 units for
admission without condition. These four are tax-supported institutions in states where
the public school systems have not developed to the point where the requirement of
four years of preparatory work would be justified. They are raising their requirements
as fast as local conditions permit. Forty of the schools still advertise that they accept
students with two or three units of conditions. All admit either by certificate from
accredited high schools or by examination excepting the Massachusetts Institute and
the Sheffield Scientific School, which admit by examination only. West of the Alle-
ghenies entrance examinations are rare.

The number of units specifically prescribed for admission varies from 5 at the North
Carolina College of Agriculture and Mechanic Arts, to 13 at Yale and George Wash-
ington University, or even to 14 at Notre Dame University. Half specify 10 or less,
and half specify more than 10. All agree in demanding English and mathematics, the
amounts varying from 2 to 4 units. In English nine-tenths of the schools regard 3
units as standard, while in mathematics six-tenths have settled upon 3 as standard,
half of the remainder requiring more and half less. History is specifically required by
71 per cent of the schools and one science (physics or chemistry) by 73 per cent. One-
thh"d, mostly land grant colleges and state universities, require no foreign languages
for admission.

The nature of the changes in the distribution of time in the curriculum itself is
indicated by the following typical cases. The unit is the semester-hour.

Massachusetts Institute of Technology
Mechanical Engineering

Foreign languages
English
History
General studies

[867

1914

Per cent of Total Time.
1867 1914

12
31

31 18

DEVELOPMENT OF THE ENGINEERING CURRICULUM 23

1867

1914

Per cent of Total Time
1867 1914

Mathematics

Chemistry

Physics

Geology

Mechanics

16
8

12
2
4

17
17
14
0
13
61

27 36

Drawing and descriptive
Mechanical engineering
Machinery and motors
16 specialized courses in

geometry
M. E.

42 46

The most notable changes in the mechanical engineering curriculum of the Massa-
chusetts Institute of Technology, as noted above, are:

The reduction of the foreign language requirement from 31 to 7 credit hours. This
is partly a result of better language work in preparatory schools.

The apparent reduction of the English requirement from 14 to 8 credit hours. In
interpreting this fact it must be noted that in 1867 the study of political economy,
the United States Constitution, and some history of civilization were included under
the head of English. Subjects like these are now provided for in the 12 credit hours
of general studies. On the whole, however, the time given to these "humanities "has
been reduced from 31 per cent to 18 per cent of the total.

In the science group, chemistry has increased from 8 to 17 credit hours, and me-
chanics now gets 13 instead of 4. This latter increase is noteworthy because the fun-
damental principles of mechanics have not changed materially in the past fifty years.
Some of the additional time is devoted to laboratory work in applied mechanics,
strength of materials, etc. Mathematics and physics retain practically the same time
allowance. The time given to science has in general increased from 27 per cent to 36
per cent.

The technical subjects have been given more time (from 63 to 80 credit hours),
altho their percentage has increased but little (42 to 46). They have, however, been
specialized to a high degree. The only technical subjects mentioned in the program for
1867 were drawing (47 hours), mechanical engineering (10), machinery and motors (4),
and stereotomy (2). To-day the mechanical engineer must take drawing (17 hours),
heat engineering (7), mechanism (6), boiler design (3), engineering laboratory (3),
electrical engineering (7), machine design (8), dynamics of machinery (2), hydraulics
(5), factory construction (3), power plant design(4), foundations (1), refrigeration (1),
heating and ventilating (1), and shopwork (10).

This increasing specialization has not been confined to the subject-matter of each
curriculum. In 1886 the civil engineering curriculum was divided into three sub-spe-
cialties, civil engineering, railroad engineering, and topographical engineering. The

STUDY OF ENGINEERING EDUCATION

following year mechanical engineering was divided into marine engineering, loco-
motive engineering, and mill engineering. As a result, the six different curricula of
1867 have now expanded into more than twenty. Fifty years ago the work of the first
two years was the same in all six curricula; now specialization begins in the middle
of the first year. Then a student carried only four or five courses at one time; now
he carries from eight to thirteen.

The following table gives the distribution of time among the three main divisions
of the materials of instruction for two curricula in the two typical schools together
with the average for all 126 schools. The figures are per cents.

1867

Illinois C. E.
Illinois M. E.

Massachusetts Institute of Technology C. E.
Massachusetts Institute of Technology M. E.

Average

Languages
Humanities

29
31

Mathematics

Sciences

29
27

Drawing

Engineering

42
42 ■

1914

Illinois C. E.
Illinois M. E.

Massachusetts Institute of Technology C. E.
Massachusetts Institute of Technology M. E.

Average

Average (all schools)

There is no agreement as to what percentage of time should be devoted to each
of these main groups of subjects. The percentage devoted to professional work varies
from 25 at Northwestern, or 30 at Johns Hopkins University, to 70 at Cornell, or
even to 85 at the Michigan College of Mines. Similarly there is no accepted propor-
tion for individual subjects like calculus, which varies from 52 hours at Rensselaer
to 216 hours at the University of Florida. The requirement in languages in college
varies from zero at Leland Stanford, the University of Virginia, and Cornell, to 408
hours (18 per cent) at the Sheffield Scientific School at Yale, or to 594 hours (18 per
cent) at the Virginia Polytechnic Institute. The total number of hours of assigned
work required for graduation varies from 2000 to 3800, and the number of required
credit hours per week varies from 16 to 28.

At several of the schools visited efforts are being made to adjust the requirements
of the several courses in such a way that a student will be able to accomplish the
work in 50 hours a week, including class work, laboratory work, and outside prepa-
ration. As a matter of fact few students succeed in keeping up to grade without
spending much more than this on their work. If a student is able to keep within the
limit, he has, when he is carrying thirteen courses, on the average 3 hours, 50 min-

DEVELOPMENT OF THE ENGINEERING CURRICULUM 25

utes, and 46.15 seconds per week for each. Rensselaer is the only school among those
visited that limits the students to three subjects at any one time. There each subject
is pursued intensively for a stated period that varies from one to fourteen weeks.
Thus the freshman begins work with chemistry, drawing, and French. At the end of
eight weeks his three subjects are algebra, drawing, and French. In the second term
he begins with trigonometry, French, and steam engineering, which is changed at the
end of five weeks to gas analysis, French, and physics. By this means, altho he carries
but three studies at one time, he actually completes from ten to eighteen different
subjects each year.

There is almost unanimous agreement among schools, pai'ents, and practising engi-
neers that at present the engineering curriculum, whatever its organization, is con-
gested beyond endurance. It is obviously absurd to require from the student more
hours of intense mental labor than would be permitted him by law at the simplest
manual labor. Yet on all sides the pressure of topics and subjects that have become
important because of the extraordinary growth of science and industry is constantly
increasing. In 1870 a student might choose his specialty at the end of his second
year; now he must decide in many cases in the middle of his first year. Formerly the
choice lay among civil, mechanical, and mining engineering; now the selection must
be made from aeronautical, agricultural, architectural, automobile, bridge, cement,
ceramic, chemical, civil, construction, electrical, heating, highway, hydraulic, indus-
trial, lighting, marine, mechanical, metallurgical, mill, mining, railway, sanitary, steam,
textile, telephone, topographical engineering, and engineering administration. No one
school offers curricula in all of these specialties. But all are offered somewhere, and
enough are given at every school to render the selection during the freshman year
of his life's specialty a peculiarly difficult matter for the student.

From the wide variations in the amount of time required for completing the course
and the great diversity of ways in which the schools have met the demands of increas-
ing specialization in industry it is clear that they have reached no general agreement
as to how to deal with the problem. Each has sought to adjust itself as best it could to
the immediate demands in its locality, and has added specialized courses as the need
for them appeared. But tho there are many variations in the details of curricula at
the several schools, all have remained true to the original conception of the early
curriculum; namely, that instruction in the general principles of science and in the
humanities should precede instruction in the various technical specialties. In nearly
all curricula the work of the freshman year consists of chemistry, mathematics, Eng-
lish, foreign languages, and drawing. The work of the sophomore year, while not so
well standardized, very generally contains calculus, physics, some language study, and
drawing, with here and there a few of the engineering courses. The junior and senior
years are filled to overflowing with specialized technical courses.

The present curricula are thus the natural result of two well-defined influences;
namely, the original curriculum that was imported from France in 1849 by Professor

26 STUDY OF ENGINEERING EDUCATION

B. F. Greene of Rensselaer, and the phenomenal expansion of science and industry.
Meanwhile, two other influences have been gradually developing — the engineering
profession and the science of education. The bearing of these on present practices is
discussed in the later chapters.

Since the plan on which this study was earned out did not contemplate a complete
survey of engineering schools or a grading of them into classes as good, bad, or indif-
ferent, only twenty typical schools were visited. The examples in the following chap-
ters are therefore drawn in the main from these schools, selected not because of their
geographical location, but because they seemed representative of all types of engi-
neering college. The author wishes here to express his appreciation of the cordial man-
ner in which all college presidents and teachers cooperated in securing all the infor-
mation sought and in frankly discussing mooted points. The twenty schools visited
were the following:

The United States Military Academy, West Point, N. Y.

Rensselaer Polytechnic Institute, Troy, N. Y.

Massachusetts Institute of Technology, Cambridge, Mass.

Stevens Institute, Hoboken, N. J.

Carnegie Institute of Technology, Pittsburgh, Pa.

Columbia University, New York, N. Y.

Tufts College, Tufts College, Mass.

Worcester Polytechnic Institute, Worcester, Mass.

Virginia Polytechnic Institute, Blacksburg, Va.

Purdue University, Lafayette, Ind.

Pennsylvania State College, State College, Pa.

Cornell University, Ithaca, N. Y.

Sheffield Scientific School, Yale University, New Haven, Conn.

University of Pennsylvania, Philadelphia, Pa.

University of Virginia, Charlottesville, Va.

University of Pittsburgh, Pittsburgh, Pa.

University of Illinois, Urbana, 111.

University of Wisconsin, Madison, Wis.

Ohio State University, Columbus, Ohio.

University of Cincinnati, Cincinnati, Ohio.

Chapter V

METHODS OF ADMINISTRATION IN ENGINEERING SCHOOLS

The final control of American Engineering Schools, as of the colleges and univer-
sities, is vested in a board of trustees or regents. In the case of state institutions the
members of the governing board are usually appointed by the state governors, while
in independent institutions they are self-elected for long terms. Generally the regents
or trustees are citizens who have won distinction in either professional or industrial
life. In a few cases a limited number of members of the faculty are also members
of the board ; but as a rule all communication between the faculty and the board is
thru the president.

The regents or trustees are charged with the financial management of the schools.
They elect the president on their own initiative and appoint or promote members of
the faculty on his recommendation. All appropriations, to be legal, must have their
sanction, and educational policies framed by the president or the faculty are nomi-
nally subject to their veto. This organization places large responsibilities on the presi-
dent and makes it possible for him to be the dominant influence in the development
of a school.

In the early schools the problem of framing and administering the requirements
for admission and graduation was relatively simple. At Rensselaer the first faculty
had but two members, both chosen because of their sympathy with the educational
aims of the institution. Similarly at the Massachusetts Institute, President Rogers
surrounded himself with a faculty of nine men who were enthusiastically devoted to
him and to the new venture. Prior to 1870 no school had as many as 200 students,
curricula were few, and the faculties were so small that a close and intimate coopera-
tion among the members and with the president was everywhere the rule. But with
a teaching staff of 260 and 2000 students, the present numbers at the Massachusetts
Institute, this direct personal contact among the members of the faculty and between
instructor and student is no longer possible. It was easy for Professor Pickering to
exert a strong personal influence over every one of the 25 students in his pioneer
physics laboratory; but it is impossible for any one to do the same when there are 450
students who need apparatus, attention, and guidance. The increase in number of stu-
dents from 1500 in 1870 to 33,000 now, in value of plants from about one million
dollars to sixty-eight millions, in annual expenditures from about $250,000 to over
eleven millions, and in number of professional specialties from four to perhaps forty,
has compelled the devotion of a large amount of attention to the organization and
administration of the daily routine on which the effectiveness of the school so largely
depends.

The regulations and the administrative systems that have been developed at the
various schools under the pressure of increasing size and complexity differ widely from

28 STUDY OF ENGINEERING EDUCATION

one another. All bear evidence of having been shaped to meet local needs under the
guidance of individuals of strong convictions. But while it is not possible to classify
these systems in well-defined categories, they may be arranged in a series that extends
from what may be called the marked military type, on the one hand, thru the autono-
mous-department type, to the well-defined cooperative type on the other.

The leading characteristics of the military type are exhibited best in the admin-
istration of the United States Military Academy at West Point. Since this school is
supported from the federal purse, its financial control is vested in Congress, which
makes its appropriations for this purpose on the recommendation of the War Depart-
ment and the Board of Visitors, composed of five senators and seven members of the
House of Representatives. The administration of the school is entrusted to the super-
intendent and the academic board, consisting of the superintendent, the commandant
of cadets, and the eleven heads of the departments of instruction. The curriculum
framed by this board, the methods of instruction, and the textbooks selected for use
are subject to approval by the War Department. The time schedule and the order
of instruction in the several courses ai'e determined by the academic board, which also
conducts examinations, passes on the merits and proficiency of the cadets, grants di-
plomas, and makes recommendations for commissions in the army. When considering
questions concerning relative standing and promotion, the senior assistant in each
department sits with the academic board.

The officers of instruction are detailed to this duty by the War Department. Their
number varies from 110 to 120 for 580 cadets. Only the thirteen members of the aca-
demic board have any voice in selecting subject-matter and determining methods of
instruction. The classes are divided into small sections, usually of twelve each. The
ground to be covered each day and even the questions to be asked during each lesson
are as a rule determined by the head of the department, who is also required to visit
each section frequently in order to ascertain the proficiency and qualifications of the
cadets and the manner in which the instructors perform their duty. The assistants
seldom serve more than four years, but new appointees are usually required to attend
classes and study the methods of instruction for a few months before being placed in
charge of sections.

The daily routine of each cadet is rigidly prescribed. He is responsible for some
duty every hour, is sure to be called to recite at every class meeting, and is given a
numerical grade for every recitation. These grades are reported by every instructor
every week, and the roll of the class is arranged each month in the order of the rat-
ings. The division of the class into sections is made according to the relative stand-
ings; the twelve cadets with highest standings being assigned to the first section, the
next highest twelve to the second section, and so on. The instruction is to a certain
extent adjusted to the ability of the several sections, the more difficult investigations
and subjects being given only to the higher sections. Assignments after graduation
and relative rank when commissioned follow the order of merit at graduation. The

METHODS OF ADMINISTRATION IN ENGINEERING SCHOOLS 29

maximum number of grade points attainable by a cadet in the four years is 2525;
and since these are assigned by a large number of different instructors, the number
secured is a pretty accurate measure of the cadet's ability to meet the requirements
of the academy. Because of this fact, the grading system is a very real incentive to
good work and to the maintenance of the ideals of soldierly honor and obedience to
orders which are such effective features of this school.

While military drill and military instruction are required of male students at all
the land grant colleges, military methods of administration are little used in engi-
neering schools. Here and there maybe found a single department that is administered
in a military manner. At the University of Pennsylvania several departments divide
their classes into small sections, outline the work for each "section hand," as the in-
structors have been called, and rotate the instructors among the sections each week.
Johns Hopkins University has recently introduced a curriculum called military en-
gineering very similar to that given at West Point, but the methods of administering
it do not differ from those used for the rest of the school. The West Point honor and
grading systems and West Point discipline, either for instructors or for students, were
not found at any of the other schools.

In the great majority of engineering schools the control of the curricula, the regu-
lations for admission and graduation, the time schedule, and the discipline are vested
in the faculty, which is composed of all officers of instruction above a specified rank,
differently defined at the various schools. All general educational policies, require-
ments, and rules for students are determined by a majority vote of the faculty and
administered by executive officers, deans, and boards or standing committees, usually
appointed by the president, tho at several institutions they are elected by the faculty.
The number of these committees varies from six to twenty-six. Every voting member
of a faculty is subject to service on committees, many of which have to meet weekly
and devote much time to their work.

Faculty control generally ends with the adoption of the curriculum and the time
schedule. Having determined by majority vote the requirement in hours for each sub-
ject, the choice of subject-matter, texts, and methods of instruction in each subject
is left entirely to the department concerned. For example, if three hours a week is
assigned by the faculty to English, the department of English may use that time in
any way it likes. Each department is treated as an expert in its own line, and this de-
partmental autonomy is carefully preserved by common consent. Departments vary
in size from three or four members to thirty or forty, and a serious effort is always
made to assign each man to work for which he is particularly fitted by temperament,
ability, and training. Hence the various phases of the work within a department are
usually well coordinated, but the policies and methods of instruction in the different
departments of the same school often differ widely from one another. While faculty
control is more democratic than military control in that every member of a faculty
has a vote on questions of general requirements and policies, it does not produce

30 STUDY OF ENGINEERING EDUCATION

the unity of aim and effort exhibited at West Point because its jurisdiction ends at
departmental boundaries. For this reason, this form of administration is called the
autonomous-department type.

When an engineering school is part of a large university, — like Cornell, Ohio State,
or Illinois, — which also contains a school of liberal arts, a law school, a medical school,
and an agricultural school, it is customary to vest the control of each school in an in-
dependent faculty of its own. The departments of English, foreign languages, mathe-
matics, physics, and chemistry are usually organized under the faculty of liberal arts,
frequently without representation on the engineering faculty. In such cases engineer-
ing students are under the jurisdiction of the faculty of liberal arts for most of their
work during their first two years, and the engineering faculty has limited control of
the instruction of its students in these fundamental subjects. Under these conditions
the four-year course in engineering has no coordinating centre.

The cooperative type of administration has reached its fullest development at
the engineering school of the University of Cincinnati, tho both the Sheffield Scien-
tific School at Yale and Stevens Institute are experimenting along analogous lines. At
Cincinnati the engineering school has its own departments of English, mathematics,
and foreign languages; and the departments of physics and chemistry, tho organ-
ized under the faculty of liberal arts, are represented in the engineering faculty by
the instructors who teach the engineers. The faculty thus constituted meets every Sat-
urday morning for a systematic study of its educational problems. A syllabus stat-
ing the objects, the methods, the subject-matter, and the mechanism of the school as
a whole was prepared by the dean and discussed at length by the faculty. After many
changes and amendments, the syllabus was finally adopted as an adequate expression
of the basic conceptions toward which the school as a whole is working. Each depart-
ment in turn then presented a similar syllabus setting forth in detail the objects,
methods, subject-matter, and mechanism by which it proposed to contribute to the
general result. These departmental syllabi were discussed freely by the whole faculty,
and approved only when a general agreement had been reached. In this way there has
been developed a very effective coordination of effort among the several departments.1

The coordination of effort does not end with the agreement on syllabi. By unani-
mous vote of the faculty no student is finally passed in any subject until he gradu-
ates. Each student is graded at the end of each course ; but if, after receiving a pass-
ing grade in any subject, he shows in a later course that he is weak in that subject,
he is sent back to the department in question for more work. For example, the pro-
fessor of machine design may " flunk " a man in calculus if he cannot use the calculus
properly in the work in machine design. Again, all reports prepared for the technical
departments must pass the department of English before reaching the department
for which they are intended. This cooperation among the departments in the school

1 A full description of the system, including several of the syllabi, has been published by the United States Bureau
of Education in Bulletin 51, 1916, on The Cooperative System of Education, by Professor C. W. Park.

METHODS OF ADMINISTRATION IN ENGINEERING SCHOOLS 31

is as important an element in the Cincinnati experiment as is the cooperation of the
school with the industries. The University of Pittsburgh and the Massachusetts In-
stitute of Technology are cooperating on a part time basis with industries, but their
faculties are organized on the autonomous-department plan.

The cooperative type preserves one of the main advantages of the military type
in that its jurisdiction extends within departmental boundaries. Since it uses this ju-
risdiction not for autocratic control but as a means of converting a government by
majority vote into a community of effort for the student's good, it also possesses
another of the effective factors of the military type, namely, homogeneity of action.
When skilfully organized, as at Cincinnati, the engineering faculty is a coordinating
centre for the entire engineering curriculum. Nor does it appear to have lost any of
the nominal advantages of the autonomous-department type in the way of personal
freedom of its members and inspiration for creative work.

Chapter VI

STUDENT ELIMINATION AND PROGRESS

Engineering schools as a rule keep accurate account of the number of students in
attendance each year in each class. These figures, however, do not show how large the
actual elimination is, because a number in every graduating class have pursued irreg-
ular courses — have entered with advanced standing or been retarded a year or more.
Hence the difference between the number of graduates in any given year and the num-
ber of freshmen four years back does not indicate the true mortality. In order to de-
termine this it was necessary at each of the schools visited to pick from the records
of the graduating class all students who had entered four years before and proceeded
thru without break. The ratio of this number of what may be called regular gradu-
ates to the total number of freshmen four years previously is one expression of the
manner in which a school is meeting the needs of its locality.

Only one of the schools visited already knew how large its elimination is when
counted in this way. Among this selected list of schools the lowest mortality was
found at Pennsylvania State College, where just half of the freshmen went thru
regularly and graduated in four years. The highest losses were found at the Univer-
sities of Illinois and Wisconsin, where only about one-quarter of those admitted as
freshmen graduate regularly on schedule time. The figures vary from year to year at
every school, so that no fixed figure can be given for any institution; but from the
counts made for two years at twenty schools it is clear that less than 40 per cent of
all freshmen at engineering schools complete the course in the allotted time. While
this record is sufficiently striking, it is better than it was in the early days. Then in
some cases the elimination was as high as 91 per cent and the average was nearer 75
than 60. This change for the better is in large measure the result of the increased
efficiency of the secondary schools.

While it is interesting to compare the elimination of 66 per cent at the Massa-
chusetts Institute, which admits only by examination, with the elimination of 75 per
cent at Wisconsin or Illinois, which admit almost wholly by certificate, it is not safe
to draw any conclusions as to the relative merits of the two methods of admission.
Elimination depends on too many other variable factors, such as physical health,
family conditions, financial resources, college spirit, the appeal of the college work, and
the friendly personal interest of the faculty. For example, the date of Dean Burton's
appointment as counselor to freshmen at the Massachusetts Institute is recorded by
a sharp drop in the freshman mortality figures. Because of the complexity of the prob-
lem it is perhaps not surprising that the schools have no records as to the reasons for
withdrawal.

Nearly half of the elimination takes place in the freshman year and about one-quar-
ter more in the second year. During these years almost all of the time is spent on Eng-

STUDENT ELIMINATION AND PROGRESS 33

lish, mathematics, foreign languages, chemistry, and physics, and little opportunity is
afforded for contact with real engineering projects. Hence many engineering students
are eliminated before they have a chance to show their ability at their chosen profes-
sion. At one of the schools several cases were found where engineering students had
been eliminated during the freshman year for failure to meet the demands of the
department of German. At another English literature was a fertile source of dis-
couragement for freshmen. A large amount of pertinent information concerning the
success of school administration and instruction may be secured from a study of the
reasons why students leave engineering schools, especially since many who do leave
before graduation persist in engineering and make a success of it.

The variations of the average grades of a group of students thru their four years
of work supply an interesting basis on which to j udge of student progress and the
adaptation of the work to student needs. The following table presents for each of
the four years the weighted average grades l of a group that entered regularly, pro-
gressed normally, and graduated on time at the several schools named:

Institution

Cases

Fr.

So.

Jr.

Sr.

University of Illinois

86.9

84.1

83.7

83.2

University of Virginia

86.0

84.0

82.0

85.0

Purdue University

84.7

83.2

80.7

81.6

Rensselaer

83.7

81.7

82.5

83.7

University of Wisconsin

84.5

83.3

83.2

86.3

Pennsylvania State

80.6

80.4

78.4

79.6

Virginia Polytechnic

79.6

77.0

77.3

87.3

Stevens

78.1

73.4

75.5

74.0

Cincinnati

77.4

76.5

74.9

76.7

Columbia

77.2

76.2

75.8

74.9

University of Pennsylvania

74.5

72.0

70.0

71.5

Ohio State University

72.0

71.0

70.6

71.2

Yale (Sheffield)

67.0

65.2

68.2

Massachusetts Institute

66.8

64.7

65.6

64.0

Cornell (Sibley)

75.2

72.9

73.2

73.9

Cornell (C.E.)

76.3

76.0

72.1

75.2

Tufts

72.0

68.0

70.0

73.0

Average

785

76.9

74.9

74.8

76.9

Average age of graduation 22 years, 11 months.

In every case the standing of this random group of the regular graduates is higher
in the freshman than it is in the sophomore year. In the general average for the 785
cases studied the drop of 2 points persists thru the junior year and is recovered in the
last year. The phenomenon is general, altho some schools exhibit it more markedly
than do others.

While several interpretations of the meaning of this sag in the average grade curve
are possible, its cause may be located statistically by noting in what subjects the

1 The weighted average is found by multiplying each grade by the number of credit hours it represents, adding the
products, and dividing by the total number of credit hours for the year.

34 STUDY OF ENGINEERING EDUCATION

students had the greatest number of low grades in those years. For this purpose thirty
or more records of regular graduates were taken at random and the number who re-
ceived low grades in each subject was counted for each school. The meaning of the
term " low grade " was determined at each institution from a study of the local grad-
ing system. At schools that grade numerically with 60 as the pass mark, like Virginia
Polytechnic Institute, Stevens Institute, and Cornell University, all marks below TO
were counted as low. Thus, for example, at Stevens Institute out of 51 cases studied,
31 had at least one grade below 70 in physics and the average mark in that subject for
these thirty-one students was 63.2. In calculus 26 had received grades below 70, the
average being 63.1, and so on. When 70 was the pass mark, as at the Universities of
Illinois and Wisconsin and Pennsylvania State College, marks below 80 were counted.
At the Massachusetts Institute of Technologv, where 50 is the pass mark, L, which
stands for a rating between 50 and 60, was considered a low grade. At Sheffield Sci-
entific School and Rensselaer Polytechnic Institute, which grade on a scale of 4 with
2 as the pass mark, marks below 2.4 were counted. The grading systems of the Uni-
versity of Pennsylvania, Ohio State University, and Purdue University could not be
used for this purpose because they recognize only three grades, A, B, and C, above
pass mark and the lowest grade covers too wide a range. At Ohio State University
a new grading system with five steps between pass and 100 has recently been intro-
duced.

The table on page 35 gives the results of this count for twelve schools. Every stu-
dent whose record was counted was a regular student who had entered without con-
ditions, had passed thru normally in the regulation time, and had received his degree.
The low marks of the 60 per cent who were "weeded out"" are not included; if they
had been, the percentages would be much higher. The figures in the table are there-
fore a fair statement of the results achieved by a school under the most favorable
conditions.

Taken in connection with the facts of elimination, these figures show that out of
every 1000 freshmen not more than 400 graduate in the specified time, and that half
of these just "get by" in physics, calculus, and mechanics. The percentage of low grades
is about the same in English and modern languages when these subjects are required.
This means that out of every 1000 who are admitted only about 200 — 20 per cent
— adapt themselves creditably to the requirements of the schools in these so-called
" fundamentals."

The two tables make it clear that the drop in the average grades occurs when physics
and calculus with an average low grade record of 49.5 per cent replace chemistry and
freshman mathematics with an average low grade record of not over 25 per cent. It
is not possible to give this last percentage exactly because the freshman mathematics
courses are not comparable; but the low grade counts in advanced algebra, trigonom-
etry, and analytics are all below 20 per cent. Altho the third year program and courses
differ so much from one another that the figures from various schools cannot be com-

STUDENT ELIMINATION AND PROGRESS 35

Number and Percentages of Low Grades in Particular Subjects

Insti-
tution

Number
of Cases

Physics

English

Modern
Languages

Calculus

Mechanics

Chemistry

Descriptive
Geometry

67
79
51
48
43
54
19
46
64
22
44
84

43-64%

40-51

31-60

21-47

30-69

38-70

10-52

13-28

24-37

15-68

13-30

39^7

37-55%

47-60

11-21

37-77
not required
not required

10-52

13-28

31-48

16-72
7-16

40-48

38-57%

51-64

4-8

34-69

not required

6-31

16-35

not required

7-33

not required

48-57

22-32%
48-61
26-51
13-29
32-74
33-61
9-47
18-40
27-42
15-70
22-50
33-39

21-31%
47-60
26-51
20-42
28-65
35-65
13-68
25-54
27-42
5-23
24-55
49-58

20-29%

31-40

11-21

7-14
14-32
15-28
11-58

7-15
14-22
15-70
12-27
44-51

13-19%

26-33

21-41

5-10
16-37
21-40

4-21

6-13

4-6
10-45

5-11
34-40

Totals

621

317

249
534

198
416

298

330

201

165

51.0%

46.6%

47.5%

48.0%

53.1%

32.3%

26.5%

pared, it is fairly evident that the mechanics, which is common to all and which has
a low grade record of 53.4 per cent, is largely responsible for the continuation of the
low average grade thru the junior year.

While many professors regard a high percentage of low grades as pi*oof of efficient
teaching, experience has proved that an excessive number of low grades in some par-
ticular subject in the records of regular graduates is a sign of some trouble that can
usually be removed by a little attention. For example, 80 per cent of the regular grad-
uates of 1914 in Cincinnati had low grades in History 50. This course had been intro-
duced the previous year to give a broader outlook. It consisted of a rapid study of
geologic evolution, of biologic evolution, and of the evolution of civilization given by
the respective heads of the departments of geology, biology, and history in the Fac-
ulty of Arts, Literature, and Science. The first year it proved a great success, and the
engineering students in the class of 1913 gathered much information and inspiration
from it. But the class of 1914 had much trouble with it until it was discovered that
it had been turned over to a young instructor who was drilling the class on Guizot's
History of Civilization by the textbook-recitation method. The course was promptly
dropped and the students absolved from the requirement by the engineering faculty.

Since employers regard college grades as precarious guides in selecting men for jobs,

36 STUDY OF ENGINEERING EDUCATION

an effort was made to find out whether the fact that about half the graduates of en-
gineering schools have received low grades in physics, calculus, and mechanics means
that half the graduates are on that account low grade engineers or not. The direct
method of doing this would involve tracing the later careers of those who received the
low grades to see if they were relatively less successful than those who ranked high
in these fundamental subjects. This method is impracticable because there is as yet
no valid definition of what constitutes success in engineering. There are, however, a
number of large industrial firms that employ several hundred college graduates each
year and keep records of their accomplishments. A comparison of the records of the
same men in college and in industry would indicate how close the correlation between
them is.

Thru the courtesy of Mr. A. L. Rohrer of the General Electric Company of Sche-
nectady, copies of his records of the 168 graduates in their employ from the class of
1913 of all the schools visited were secured. On these records each man was rated by
each of the foremen under whom he worked as A, B, or C in each of the five qualities,
Technical ability, Accuracy, Industry, Ability to push things, and Personality. Thru
the courtesy of the schools copies of the full college records of these same men were
secured. An extended study of these two sets of records by Professor E. L. Thorndike
of Columbia showed that the correlation between the two was very slight; that is,
that ability to secure high grades in college was no indication of ability to meet the
requirements of the General Electric Company. On the other hand, the college grades
signify something, since the grades for the senior year correlate closely with the aver-
age grade for the entire course, showing that ability to secure high grades in college
is a stable and permanent characteristic of an individual. A similar study was made
thru the courtesy of Mr. C. R. Dooley of the Westinghouse Electric and Manufactur-
ing Company of Pittsburgh of a group of 40 college graduates in the employ of that
company. The results were practically the same.

While these studies have not yet settled the problem, they serve to define it more
clearly. The facts are that half of the college graduates are rated low in the funda-
mental subjects by their college instructors, and that college grades show little cor-
relation with the ratings of two large industrial companies that "take on" several
hundred college graduates each year.

Chapter VII

TYPES OF INSTRUCTION IN ENGINEERING SCHOOLS

The method of instruction employed at Rensselaer during the first five years (1824-
29) was new in America, tho it resembled the methods inaugurated in 1806 by Pesta-
lozzi in the Fellenberg School at Hofwyl, Switzerland (page 9). It was designed by
the first senior professor, Amos Eaton, who was a graduate of Williams College and
had done graduate work with Silliman at Yale. At no other school was the student
given the place of the teacher and compelled to rely on his own resources in preparing
subjects for presentation to his classmates. The observation of industrial processes as
the basis for class discussion and laboratory problems which led by inductive processes
to general principles after the manner of real scientific investigation were at this time
unique in elementary instruction. No other school treated beginners by the same
methods that were used so successfully in advanced study. But altho the method as
practised proved successful, it had to be abandoned in 1829 because it was too ex-
pensive for the slender resources of the school. As the number of students increased,
still more didactic methods were introduced; until in 1850, when the French curricu-
lum was adopted (page 12), the student lectures had become blackboard demonstra-
tions prepared from texts followed by " interrogations" and recitations conducted by
the professors.

At the opening of the Massachusetts Institute in 1865 instruction was given mainly
by lectures, in which the professor presented to the class a logically well-organized ex-
planation of the general principles and theories of the subject in hand. Lectures were
illustrated by experiments and accompanied by blackboard demonstrations. The stu-
dents took notes, recited on them at regular quiz hours, and worked problems that
illustrated the principles and theories presented. Frequent and thorough examina-
tions were given for the double purpose of testing knowledge and inciting to dili-
gence. As soon as the facilities were available, laboratory work was introduced, in
which the student reproduced standard reactions, measured known constants, verified
theories, visualized principles, and acquired skill in manipulating delicate instruments.

The use of the illustrated lecture in instruction in science was not new, but the or-
ganization of laboratories for undergraduate students in physics was a striking inno-
vation, suggested by President Rogers and carried out by Professor E. C. Pickering
in 1869. The course consisted of a series of simple experiments illustrating funda-
mental principles or scientific methods of study and involving the use of important
instruments. The administration of the work was made practicable by having com-
plete apparatus for each instrument ready for use together with carefully prepared
written directions for its correct manipulation. When a class entered the laboratory
each member received a number directing him to the apparatus and written directions
for making the required measurements and recording the results. In this way Professor

38 STUDY OF ENGINEERING EDUCATION

Pickering was able to care for a class of twenty-five students at one time, because, as
he himself tells us, the written directions prevented the students from making seri-
ous mistakes.

The marvelous expansion of this method of laboratory work into all branches of
science in all grades of schools and the profound impress made by this expansion on
the American school system are matters of common knowledge. Here it is important
to note that this type of laboratory work was devised as an adjunct to the illustrated
lecture, for the purpose of giving training in pure science, to foster industrial produc-
tion, and develop the scientific or professional engineering spirit.

Besides the innovation of the laboratory, new methods of teaching English were
introduced at the Massachusetts Institute by Professor W. P. Atkinson, who sought
to cultivate a taste for good literature and a love of reading on subjects of interest to
the student as a man and a citizen. After a rapid review of composition and rhetoric
the classes read and discussed Duruy's Histoire des temps modernes and Guizofs His-
tory of Civilization in Europe. In the fourth year contemporary problems of politics,
economics, and sociology were discussed and written reports on subjects of their own
selection were read by the students in class. Two hours a week throughout the four
years were devoted to this work.

Since 1864, but especially since 1900, the increase in the number of students and
the migration of students among the schools have tended to standardize methods of
teaching in both high school and college. In the secondary school the process has been
accelerated by the pressure of college entrance requirements and the accompanying
definitions of the units framed by the colleges, while in the colleges the process has
been retarded by the universal respect for departmental autonomy and academic free-
dom with the consequent "laissez faire" attitude toward the problem. Under these con-
ditions some college subjects have become more standardized than others, but it is sel-
dom possible to point to any one method in any one subject as generally accepted. At
present there is a marked tendency in certain subjects to break away from the tradi-
tional forms. Some of the efforts in this direction are noted in subsequent chapters.

While there are many differences in the details of curricula and methods of teach-
ing, the first two years of work are more nearly uniform than the last two in content
and general treatment. The freshmen in almost all schools take mathematics, chem-
istry, English, drawing, and shopwork; while sophomores usually study mathematics,
physics, English, drawing, and shopwork. The methods of instruction in some of these
fundamental subjects, like mathematics and physics, are very much the same every-
where ; while in chemistry, English, drawing, and shopwork there are wider variations
and several distinct types. Still the salient features and the underlying philosophy
of the instruction in each subject are enough alike at most institutions to make pos-
sible a description of the typical treatment accorded to engineering students during
their first two years in college. Certain striking exceptions in which totally different
conceptions and methods prevail are discussed in the later chapters.

TYPES OF INSTRUCTION IN ENGINEERING SCHOOLS 39

The aims and methods of teaching mathematics to engineering students have been
fully described in the report of Sub-committee IX of the International Commission
on the Teaching of Mathematics.1 From this report it appears that mathematics teach-
ers are generally agreed that mathematics should be taught as a science by profes-
sional mathematicians and not as a tool by engineers. While all regard professional
efficiency in the use of mathematics as the test of success, they hold that this efficiency
is best secured by teaching mathematics by itself, so that the student's mind is not
distracted from the mathematical form by the engineering applications. The limited
amount of time allotted to mathematics is barely sufficient to enable the mathematics
teacher to cover the required ground thoroughly. If the teacher of engineering would
familiarize himself with the mathematical subjects, the methods, and even the nota-
tion his students have learned, he could then teach them how to use their mathe-
matics with a success and completeness not possible to his mathematical colleague.

Inasmuch as the professors of mathematics are generally agreed on this point of
view, the mathematical instruction to freshmen and sophomores is almost universally
based on the use of a standard text, in which the successive propositions are deduced
by logical processes from definitions, axioms, and postulates. A definite portion of
the text is assigned as a lesson, and in the daily recitations the students are required
either to reproduce demonstrations given in the text or to solve mathematical prob-
lems that illustrate the theorems under discussion. The customary division of math-
ematics into trigonometry, analytics, and calculus is preserved at all but two of the
schools visited. In short, mathematics in engineering colleges, as in the high schools,
is still taught by the standard methods that are so well known as to need no further
description. According to the report just mentioned (page 30), "There is nothing to
indicate that many changes have taken place during the past 10 years, or that many
are contemplated."

In chemistry the basis of the instruction is the demonstration lectures, at which
the entire class assembles two or three times a week. For the quiz and laboratory
work the class is divided into sections, usually in charge of assistants. A standard
text is generally followed by the lecturer and used by the students as a source of in-
formation for the quizzes. A separate manual containing directions for the laboratory
experiments is customary.

In most of the schools visited the presentation of the subject-matter in chemistry
begins with general statements about atoms, molecules, chemical equations, Avoga-
dro's law, molecular weight, chemical affinity, diffusion, valence, and formulas. Then
follows descriptions of the non-metals, oxygen, nitrogen, carbon, etc., — their occur-
rence, preparation, and properties, — leading to the metals in due order. The facts dis-
cussed in the lectures are learned for the quizzes ar\d verified in the laboratory. The
purpose of this type of instruction is to familiarize the student with the elementary

J United States Bureau of Education, Bulletin No. 9, 1911.

40 STUDY OF ENGINEERING EDUCATION

facts and reactions of chemistry as a means of identifying substances and therefore
as a preparation for qualitative and quantitative analysis.

Recently another type of course in chemistry has been introduced in a number of
schools. In this the data are presented not as elements prerequisite to a mastery of
chemical analysis, but as vehicles for the elucidation of modern chemical theories. In
courses of this type the study of oxygen includes such topics as the diffusion and lique-
faction of gases, critical temperature, endothermal and exothermal reactions, the gas
laws, and the kinetic-molecular theory of matter. Similarly the facts about hydrogen
are used to elucidate reversible reactions, chemical equilibrium, equivalent and atomic
weights, and chemical equations. The study of water furnishes a natural thread on which
to string the law of combining volumes, Avogadro's theory, molecular weight, solu-
tions, and the kinetic theory of solution. The properties of chlorine serve as a basis
for the presentation of electrical conductivity of solutions, osmotic pressure, ionic the-
ory, degrees of ionization, electric charges on the ions, valence of the ions, and the elec-
tron theory. About ten weeks is required to cover these topics, and then the remainder
of the year is spent in studying the more important reactions from the standpoint
of the ionic theory. Incidental references are made to the industrial uses of chemistry.

Altho these two types of courses in chemistry differ in content, both use the lec-
ture-quiz-laboratory method of imparting information. In one case the information
is being stored for later use in chemical analysis; in the other it is being organized
for the elucidation of ionic theories. In neither case is the student given such a pro-
ject as: "Make baking powder and determine whether it is better and cheaper than
any you can buy." His problem is always in the form : " Determine the chemical com-
position of this powder."

Physics is generally taught in the second year as a one-year course, tho five of the
schools visited devote some time to it in the first year. As in chemistry so here, the
typical course consists of three parts, demonstration lectures, quizzes, and laboratory
work. In the lectures, of which there are two or three a week, the professor presents
the essential facts and principles in a logically well-arranged order, beginning with
definitions and statements of laws, followed by their mathematical or experimental
demonstration, and ending with a few brief remarks concerning practical applications.
Usually the entire sophomore class attends the lectures in a body; so that, in the
larger schools, there are as many as three or four hundred students at each lecture. For
quizzes the class is divided into sections of from twenty to twenty-five each; and these
are turned over to assistants who listen to recitations on assignments in the text, ques-
tion the students on the content of the previous lecture, and assign illustrative prob-
lems to be solved at home. With large classes of from twelve to twenty sections the
quiz and laboratory work requires a large corps of assistants, many of whom are grad-
uate students or fellows who receive a modest stipend (from $200 to $500 a year) for
this service.

In the laboratory work the methods and aims defined by Professor Pickering in

TYPES OF INSTRUCTION IN ENGINEERING SCHOOLS 41

1869 are still dominant everywhere. About one-third of his original experiments are
still in use, and the new ones that have been introduced have as their objects the
verification of some known law, the visualization of some known fact, or the deter-
mination of some known constant. When the same experiments are used year after
year, as is the case at most schools, the students soon discover that the number of
failures and low grades in physics can be materially reduced if the results of the
physics experiments are carefully preserved from year to year and judiciously used
as occasion may require. Projects of the form " Which of these 3 electric motors is
the best for the price?" — a question that cannot be answered without making the
experiment — are almost never used. The prevailing type is "Measure the efficiency
of this electric motor." In other words, physics instruction, like that in chemistry,
aims to stock the student's mind with information as a preparation for solving real
problems should they ever arise.

The proficiency and the progress of students in mathematics, chemistry, and physics
is measured by periodic examinations, which as a rule call for the statement of defini-
tions, the mathematical demonstration of principles or theorems, and the solution of
illustrative problems. For small classes the professor himself is usually alone respon-
sible for the questions, and is also sole judge of the rating of the replies. For large
classes the examination is sometimes set by the professor in responsible charge and
sometimes by the entire group of instructors in conference. In either case the papers
are as a rule distributed among the instructors for rating so that the grade assigned
is often determined by the judgment of a single observer. The final grades assigned
for the year are a combination of the examination grades, the quiz grades, and
the laboratory grades. In making the combination the weights given to these sev-
eral elements vary enormously, some treating the examination as the sole factor and
others relying mainly on the quiz and laboratory grades. The students are gener-
ally well posted on the system used in each department, and their grades are fairly
accurate statements of their successes in meeting the requh'ements of the various
professors.

With regard to instruction in English, the engineering schools may be divided into
two approximately equal groups, the one composed of those schools that maintain
the current standard college course; and the other composed of those that are trying
to discover a type of work better suited to engineers. In the standard type of course,
the student studies a textbook of composition and rhetoric, learns the rules of correct
punctuation and paragraphing, together with the four forms of discourse, and then
writes themes on assigned subjects selected by the instructor to give practice in either
description, narration, exposition, or argumentation. In some schools the strict ad-
herence to this plan is mitigated by allowing a choice from among several assigned
subjects. The accompanying study of literature consists of a brief survey of the lives
of the great writers and the analysis of selected passages from their writings. This
well-known type of course was developed during the latter half of the past century

42 STUDY OF ENGINEERING EDUCATION

for the purpose of making English an acceptable substitute for the classics in high
schools and colleges.

Doubtless because the professional engineers have been so frank in their demand
for better training in English, about half of the engineering schools are experiment-
ing with their methods of teaching this subject. These experiments are so varied in
plan and execution that it is not possible to classify them. One of the more radical
of these is described in Chapter X.

But if it is impossible to describe the types of instruction in English because of
their number and diversity, it is still more difficult to select any one type of drawing,
descriptive geometry, or shopwork as characteristic of even a majority of the schools.
In drawing the aims of the instruction range all the way from imparting enough tech-
nical skill to enable a graduate to earn his living as a draughtsman, to developing
the power of visualizing solid objects from flat drawings. At some schools the subject
is introduced with geometrical drawing for practice in the use of instruments, at others
the first plates are merely copied, while at still others freehand sketching in perspec-
tive takes the lead. In some cases descriptive geometry is closely correlated with draw-
ing from the beginning; in others it is treated independently and even by a separate
department.

The variations in types of shopwork are no less numerous. At some few schools
no shopwork whatever is required; at others students merely visit shops and listen to
lectures on the subject, but do no actual work with tools; at still others the emphasis
is placed on acquiring a certain amount of manual dexterity in typical operations
with tools, but nothing is actually constructed; at others production of salable articles
is placed foremost; the shop is used in some cases as a means of acquiring practice in
scientific management and business administration; while under the cooperative plan
the school conducts no shopwork, but the students gain practical experience with
tools, production, and management by working half time for pay in industrial plants.

It is a striking fact that the three subjects in which there are such wide variations
in teaching practice are the three that are constantly exposed to objective test. Eng-
lish, drawing, and shop are three subjects in which a student's ability is expressed
objectively if at all; and these are the subjects in which experiments in methods of
teaching are most numerous.

These six subjects — mathematics, chemistry > physics, English, drawing, and shop
— occupy the major part of the time for the first two years in all engineering cur-
ricula. The majority of schools also require one or more foreign languages, taught
almost invariably by the standardized method of grammatical study and analysis. The
civil engineering curriculum usually includes in the first or second year the theory
of surveying, followed by a summer camp for practical work. Apart from this work in
surveying, there is as a rule very little that makes the freshmen or the sophomores
vividly aware of the fact that they are studying engineering. This has been recognized
as a defect by some schools, which have sought to remedy it by "orientation" lee-

TYPES OF INSTRUCTION IN ENGINEERING SCHOOLS 43

tures and talks by professional men describing the nature of real engineering work
in the field. Still there are cases on record where freshmen in engineering have been
"weeded out"' entirely because of deficiencies in English and German.

The instruction during the last two years is almost wholly devoted to professional
work. The prevailing methods of teaching are very similar to those used in the earlier
years in chemistry and physics, the difference being that the topics and problems are
technical rather than purely scientific. Since specialization has now divided the juniors
and seniors into groups, the classes are generally small and they receive the atten-
tion of the older and more experienced professors. Theory and theoretical design are
strongly emphasized throughout and some attention — frequently very little — is
given to the practical problems of labor, organization, values, and costs.

Twenty-five years ago every senior was required to prepare a graduation thesis as
an exercise in the application of all he had learned and a training in engineering meth-
ods of attacking real problems. At present only half of the schools require theses of
all graduates; in one-tenth the thesis is elective, in one-tenth the better students only
are allowed the privilege of preparing one, and in the remaining three- tenths no thesis
is required. Formerly the thesis was frequently the only opportunity given the stu-
dent to exercise his originality and express his initiative in constructive work. At pres-
ent engineering projects are being used more and more as problems and exercises in
the regular class work of the last two years. In a few cases real engineering problems
are freely used with freshmen and sophomores. These tendencies to encourage a spirit
of investigation among the younger students and to give even freshmen opportunities
for creative work are becoming more marked each year. Several significant changes
of this kind are discussed in the later chapters.

PART II
THE PROBLEMS OF ENGINEERING EDUCATION

Chapter VIII

ADMISSION

The Society for the Promotion of Engineering Education has always had a standing
committee on Entrance Requirements. This committee has made periodic reports,
which are published in the Proceedings of the Society. Yet the variations in the re-
quirements for admission to engineering colleges are still very striking (cf. page 22),
tho the content and methods of instruction in many of the accepted units have been
partially standardized by the effective work of the College Entrance Examination
Board and of numerous committees on the definition of the high school units.

From the point of view of their success in limiting admission to engineering schools
to those who have some aptitude or ability for engineering, it is evident that when
60 out of every 100 admitted fail to continue thru the course, present systems of
admission are not satisfactory. Even when due allowance is made for those who leave
for financial reasons and for the praiseworthy desire of faculties to give every boy who
has any claim to consideration a chance to prove his mettle, a fairly large number of
students who ought not to try to become engineers are permitted to undertake a
course of study for which they have little natural ability. Nor is this condition justi-
fied by the plea that an engineering training is good discipline for a journalist or a
banker; because the spirit of the work is spoiled for true engineers by the presence
of the temperamentally unfit, while these do not get the maximum benefit from work
they cannot really do well.

Fifty years ago every college gave its own entrance examinations. But as the sec-
ondary schools grew stronger, the custom of accepting their certificates as satisfactory
credentials for admission gradually expanded; with the result that for a number of
years two ostensibly rival systems have existed side by side, and many a wordy debate
over their relative merits has been held. In engineering schools the statistics of elimi-
nation (page 32) indicate that the success of present admission systems does not depend
seriously on whether the colleges give their own entrance examinations or whether they
accept certificates from the secondary schools.

Reasons for the similarity of results by the two methods of admission are not hard
to find. For every high school teacher who has in his class one boy preparing to take
a college entrance examination is fairly sure to drill the entire class on old college en-
trance examination questions, large collections of which have been reprinted by pub-
lishers of textbooks and individuals interested in maintaining the examination sys-
tem. Under these conditions if both college and school are sincere in their work, —
which unfortunately is not always the case, — it clearly makes little difference in the
boy's real attainments at the end of the course whether he takes his examination
at school or at college. In the one case he is admitted by examination, in the other
by certificate; in either case on the average at least 60 out of 100 admitted fail to

48 STUDY OF ENGINEERING EDUCATION

finish the course. Evidently the source of the difficulty does not lie in the machin-
ery of admission, but in the controlling factor that is common to both, namely, the
nature of the test itself. For engineering the question, therefore, is not which of the
two methods of admission is the more efficient, but whether current college entrance
tests really measure engineering ability or not. Ability to secure high grades in school
is a stable characteristic of an individual; but is ability to pass current school and
college examinations a valid criterion of engineering ability ? And if not, what type
of test can be safely used? This is the real problem of admission as it is the real prob-
lem of the entire college course, for tests control teaching.

Trustworthy hints as to the ways and means of discovering better types of tests
for admission to engineering colleges are expressed in the recent developments of en-
trance systems. For when every college gave its own entrance examinations in its own
way the secondary schools were confronted with a perfectly impossible task. In each
subject there were as many different examinations as there were colleges; and since
each examination measured rather the degree to which the candidate conformed to
the examiner's conception of the subject than the student's real ability, great con-
fusion prevailed. It was to abolish this confusion that the College Entrance Exam-
ination Board was organized in 1900. By having the examination questions framed
by committees instead of by individuals, by giving the same examination for a large
number of colleges, and by having all the rating done by one group of readers, con-
ditions were vastly improved, and have continued to improve as the board has gained
in experience and skill.

In the central and western states, where admission has for a number of years been
by certificate, the development has been nominally somewhat different. There the deci-
sion as to whether the work of a high school was of such quality as to warrant the
acceptance of its certificate for entrance to college was made first by professors sent
out by the colleges; then by state high school inspectors, who visited each school
periodically and reported their findings to the state universities. On the basis of their
reports a list of "accredited schools" was constructed for each state, and these lists
were combined by such organizations as the North Central Association of Colleges
and Secondary Schools to include the schools over a wide territory. Recently there
has been a tendency to check the findings of the high school inspectors by the ratings
received in college by the students from the various schools.

While the respective developments of admission systems east and west appear to
be quite different, they are in reality very much the same. In the examination system
committees instead of individuals both set the questions and grade the papers. In
the certificate system the work of a high school is now judged more by the ratings of
its students by a college faculty than by the personal judgment of one high school
inspector. Hence in both cases the growth has been away from reliance on the personal
judgment of individuals toward acceptance of the combined judgment of a group.
Under the certificate system this combined judgment is based on daily observation

ADMISSION 49

of the student's labors for a number of months, while under the examination system
the judgment in each subject is based on the reading of one paper.

From the foregoing facts it appears that the real difficulty with college admission
systems has been instinctively recognized everywhere. The determination of a candi-
date's fitness to enter college depends ultimately on tests of some kind ; and the tend-
ency in selecting and applying tests has clearly been to eliminate the fallacies and
vagaries of individual personal judgment, in order that grading may become more a
measure of ability and less an expression of how far the student conforms to the estab-
lished convictions of individuals. But tho very encouraging progress has been made
of late, all recognize that still greater improvement is possible, and that the forward
movement is in the direction of reducing the personal equation to a minimum by
making examinations and tests as objective as possible.

The expenditure of an enormous amount of time and energy has been necessary
to liberate college entrance tests from personal bias and to achieve even the degree
of objectivity that has been attained. The precipitation of the instinctive feeling
for the direction of progress into a well-defined statement of conscious aim has pro-
ceeded slowly. Now that the aim is clear and generally recognized, more rapid advance
is possible, provided the schools are ready to undertake the arduous and plodding
work involved ; for both the invention and the interpretation of satisfactory tests
require long and careful statistical studies by competent men who have been spe-
cially trained for the task. The work is worth while because admission to college is
an important division of the central problem of education — vocational guidance. If
any reasonably trustworthy method of discovering what work each individual is best
fitted for can be found, the other problems of education will in large measure solve
themselves.

Since engineering is perhaps the most objective of all professions, it offers excel-
lent opportunities for the scientific study of objective tests. A study of engineering
education therefore provides an appropriate opportunity to initiate experiments and
to attempt to sort out the more promising methods of investigation from those that
prove to be less fruitful. To this end Professor Edward L. Thorndike of Columbia
University undertook a special series of experiments with freshmen in engineering
at Columbia, Massachusetts Institute of Technology, the University of Cincinnati,
and Wentworth Institute. The experiences with the Columbia group are here de-
scribed as typical of the principles and methods applied. Further details with samples
of the tests used are given in the Appendix (pages 117-125).

Thru the courtesy of Dean F. P. Keppel, an invitation was extended by Professor
Thorndike to forty freshmen in engineering to spend two successive Saturdays (four-
teen hours) in taking the tests. Each of the thirty-four students who completed the
series was given a small fee and a full statement of his record. Fifteen tests in all were
used, each designed to record the student's relative ability in some one particular
activity which was complete in itself, altho it involved a rather complicated series of

50 STUDY OF ENGINEERING EDUCATION

reactions. Thus each student was asked to read paragraphs and write answers to ques-
tions on their meaning, to identify words as proof of his range of vocabulary, to supply
missing words in sentences, to solve arithmetical and algebraic problems, to perform
algebraic computations, to draw graphs from given data, to give geometrical proofs
of stated theorems, to solve problems in physics described in words, to arrange physi-
cal apparatus to secure stated results, to match each of a series of pictures with one
of a series of verbal statements, to supply missing lines in drawings of machinery, and
to construct simple mechanical devices from their unassembled parts.

Each test was constructed as a series of graded steps of increasing difficulty, the
first being so easy that every one was sure to accomplish it, and the last one so
difficult that only the ablest could master it. The grading of the steps is secured by
first submitting a large number of problems of a given type to about a dozen suc-
cessful teachers of the subject and asking them to divide them into groups numbered
1, 2, 3, 4, etc., in what they consider to be the order of difficulty. Problems common
to group 1 are used as the first step, those common to group 2 as the second step,
and so on, in making up a preliminary test, which is then tried on a number of classes
in different schools. The relative difficulty is then in inverse order to the number who
accomplish each step. Much further experimenting and computation are necessary if
it is desired to make sure that each successive step is more difficult than its predeces-
sor by the same amount. Most of the tests used in these experiments with engineering
students were graded in steps of equal difficulty.

The advantage of tests of graded difficulty lies in the fact that a student's grade
is determined by the number of steps he accomplishes in the assigned time. Since the
questions used are as a rule of a type that cannot be answered from memory, but
must be answered by a short statement, judgment concerning the correctness of the
answers is seldom ambiguous, so that personal bias in assigning grades is almost
wholly eliminated. Independent scorers in these tests repeatedly made ratings that
were practicallv identical (correlations .95 to .98. Cf. page 119).

The ultimate criterion of the validity of these tests is the future careers of those
tested. Since extensive data of this kind are not yet obtainable, the results of the tests
were compared with a composite rating compiled by combining the students' high
school marks in English, mathematics, and physics, their ratings in the Regents"1
examinations in these three subjects, their freshman records in English, mathematics,
and chemistry, the combined judgments of the students concerning one another's
intellectual ability, the judgment of the teachers who were acquainted with the men,
and the age of entrance to college. This composite is the best obtainable summary of
the current school judgment concerning the relative intellectual abilities of the stu-
dents tested. By it the thirty-four who took the tests were ranged in a series in the
order of their relative standings as determined by current school methods.

The students were then arranged in 15 similar series, the order of merit in each
being determined by the ratings in one of the 15 tests; and each of these 15 series

ADMISSION 51

was compared with the series defined by the schools' ratings by the method of Pearson
correlation coefficients (Appendix, page 119). Every test showed a positive correlation
with this composite school series, the correlation coefficients varying from .2 to .8.

This indicates that all the tests are symptomatic of the qualities which enable
a student to enter college young, make a good record in high school and in the Re-
gents' examinations, do well during the freshman year, and be regarded as of high
general ability by his classmates and teachers. When all fifteen tests are combined into
a single measure, the test series and the composite school series are almost identical
(correlation coefficient .84).

The records of the thirty-four men tested at Columbia have been followed for three
years. Five of the seven who stood highest in the tests received general honors, while
five of the seven lowest in the tests failed in more than half of their work and left
school. The top seven all made more than 125 credits in three years, the middle seven
averaged 92 credits each in three years, and of the lowest seven the two who did not
leave averaged 56 points each in three years.

The tests, however, differ in their validity as symptoms of intellectual ability and
should therefore have different weights in making up a summary. The computation
of the relative weights was carried out by Dr. Truman L. Kelley by the method of
partial correlation coefficients. His investigation shows that a suitable combination of
the ratings from only seven of the tests gives a closer correlation with the composite
school series than does the composite of all fifteen (coefficient .87 as against .84). These
seven tests ai*e the five in mathematics and the two in supplying the missing words
from sentences. These seven tests require five hours of the student's time, and their
results arrange the students in an order of intellectual ability practically identical
with that of the composite school series. At present the composite school judgment
is universally accepted as determining fitness to enter college. College entrance exam-
inations consume from fifteen to twenty-five hours of the student's time. These seven
tests gave in this experiment at Columbia as good a rating in five hours, and the scor-
ing is independent of personal bias. Similar results were obtained at the other schools.

To this rather striking fact must be added another no less important; namely, that
the other eight tests contributed practically nothing to this result. These eight were
paragraph reading, range of vocabulary, giving opposites of words, laboratory prob-
lems in physics, matching diagrams with sentences, completing imperfect diagrams,
physics problems stated in words, and the construction of mechanical devices from their
unassembled parts. The fact that these eight tests are unnecessary in determining an
order of ability that closely resembles the order defined by current school practices
does not mean that they are on that account useless. On the contrary, they are partic-
ularly valuable because they evidently measure abilities of which the current school
methods take no account. Further experimentation is required to determine just what
these other abilities are. They probably include language abilities that depend on
interest in reading, clear grasp of the meaning of single words and phrases, power to

52 STUDY OF ENGINEERING EDUCATION

keep in mind past context in reading a connected passage, skill in working with dia-
grams and apparatus, and mechanical sense. All of these are of prime importance in
engineering. The development of all the men tested is being followed for the purpose
of throwing more light on the questions here raised.

The same fifteen tests were given by Professor Thorndike thru the courtesy of Dean

A. E. Burton to forty freshmen at the Massachusetts Institute of Technology, thru
the courtesy of Dean Herman Schneider and with the cordial cooperation of Professor

B. B. Breese to forty-one engineering freshmen at the University of Cincinnati, and
thru the courtesy of Director A. L. Williston to sixty students at the Wentworth
Institute in Boston. The students in these groups came from so many different schools
that it was not possible to make a composite rating of their abilities on the basis of
their school records. The college records of these men have been followed for two years,
with the result that in Cincinnati the tests prophesied academic achievement in these
two years as accurately as the college rating for one year prophesied the rating for
the succeeding year (correlation coefficients .64 and .62). At the Massachusetts Insti-
tute the tests prophesied the college ratings for the two years four-fifths as well as
the ratings for one year prophesied those for the succeeding year (correlation coeffi-
cients .49 and .64). The implication is that such tests as these tell as much about
a student before he enters college as the college now knows of him at the end of his
freshman year.

The same tests were given to groups of students at four different institutions.
A comparison shows large differences among the average abilities of the four groups.
This indicates that certain schools, whether because of their locations, their repu-
tations, their student activities, or the excellence of their training, attract boys of
greater innate ability. When further developed and perfected, tests of this type may
make it possible to construct a scale of freshman abilities, by which each school can
measure the quality of each freshman class. It is conceivable that a similar scale to
measure the abilities of the seniors may some day be constructed. Then the difference
in the positions of the freshmen and the seniors on these scales would be a much more
valid criterion of the success of the school work than any now available.

Neither present admission systems nor objective tests take account of several im-
portant factors that in many cases have an important bearing on a student's efficiency
in school work. For example, Professor Thorndike found that during their high school
course two-thirds of the freshmen examined had spent more than 8 hours a week on
work other than school work. The median number of hours per week of such work
reported was 12 during school time and 40 during the summer vacation. Out of 72
freshmen at Columbia and the Massachusetts Institute, 21 reported no outside work,
37 reported from 1 to 9 hours of outside work, 11 from 10 to 19 hours, and 3 more
than 20 hours. At Cincinnati all the engineering students spend half their time in
outside work. One student, who was rated low in the composite school series but who
made an excellent record in the tests, was found to be doing over 40 hours a week of

ADMISSION 53

outside work. It is clear that a record of the amount and the kinds of outside work
done by students would be of value in determining fitness to enter college.

A record of boyish interests and activities might also help to reveal to college ex-
aminers the presence or absence of real engineering bent or temperament. The fresh-
men tested by Professor Thorndike were asked to indicate by numbers their present
preference for bargaining, managing people, studying books, clerical work, mechani-
cal work, farm work, work with animals. In the replies from 90 freshmen mechanical
work was rated first or second 82 times out of a possible 200, which is three times as
often as chance would give, and over three times as often as was the case for a group
of school superintendents at the same age. Out of 103 engineering freshmen who re-
ported on the matter of boyish activities, 91 had constructed on their own initiative
mechanical or scientific devices such as cannons, telegraph lines, telephones, electric
motors, arc lights, gasolene motors, lathes, steam engines, water wheels, boats, etc.
None of the engineering schools at present record this type of information or make
any systematic effort to use it or to interpret its meaning; nor do parents and ele-
mentary school teachers realize the importance of giving young boys and girls oppor-
tunities of expressing their innate mechanical sense in creative work.

Let no one imagine that the tests presented in the Appendix are a final solution of
the college entrance problem. They are but the beginning of an effort to proceed one
step farther in the direction indicated by the development of college entrance systems
during the past twenty years. A large amount of experimentation and cross checking
among different schools must be done to determine the validity of this type of test
and to interpret the results of its use. Enough has been done to show that the princi-
ples of testing here presented are worthy of further investigation and that methods
of procedure have been indicated that point to a safe road of real progress. As these
principles are applied and these methods are developed by many observers in many
schools, it may be possible to liberate college entrance from its present fetters and
place it on a more rational and scientific basis.

The effect of such a development on the quality of preparation for college is sure
to be most beneficial. College professors are at present the only teachers in the school
system who are permitted to teach without one hour of special training for teaching.
With mastery of their respective subjects and the highest idealism and sincerity, they
devise specifications for the content of high school courses, and then enforce those
specifications directly or indirectly by entrance examinations that do not really
measure ability or create the best conditions for its development. When the colleges
are able to define their admission requirements in terms of abilities as measured by
objective tests, instead of in terms of subject-matter covered, it may be possible to lift
the great incubus of ignorance that now oppresses the secondary schools, to supply
the colleges with freshmen much better trained and sorted on the basis of ability,
and to reduce the mortality of 60 per cent to a more reasonable figure.

Chapter IX

THE TIME SCHEDULE

When faculties were small and the number of subjects that seemed essential were rel-
atively few, the problem of the time schedule was a fairly simple one. All the neces-
sary courses could be arranged in a compact and consistent program that required
the student to carry not more than 18 credit hours of work at one time and to study
not more than four or five different subjects each term. But as science expanded and
became more intricate, specialization was unavoidable. By 1890 the civil engineer-
ing student had to choose either general civil engineering, or railroad engineering,
or topographical engineering. Similarly the prospective mechanical engineer had to
decide by the end of his second year whether he would follow the general curriculum
in mechanical engineering, or one that specialized in marine, in locomotive, or in mill
engineering. Since 1890 this process of subdivision and specialization has advanced
rapidly, pushing the student's choice of a specialty back into the first year, increas-
ing the required number of credit hours in some cases to as many as 27, and at times
loading his weekly schedule with from eight to thirteen different subjects.

If there is any one point on which practising engineers and teachers of engineer-
ing are in substantial agreement, it is that at present this specialization and subdivi-
sion of curricula has gone too far. The congestion that inevitably results is univer-
sally recognized to be a fruitful source of confusion to the student and a real cause
of superficial work. Attention is distracted from mastery of the subject and encour-
aged to seek ways and means of securing passing grades with minimum effort; so that
a rigid and exacting department is likely to get more than its share of time and labor.
There is too little time for persistent thinking, too little opportunity to realize the
joy of achievement, and too much inducement to join in the scramble for credits.

There are two obvious methods of relieving congestion, namely, more time or fewer
subjects. A few years ago Harvard University and the University of Missouri expanded
their engineering curricula to six years, partly to relieve congestion and partly to raise
engineering to the rank of a graduate professional study like law and medicine. Both
of these efforts have been abandoned, but Columbia has undertaken to continue the
experiment. The University of Wisconsin for a number of years offered a five-year
curriculum along with the regular four-year one, but this was given up because it
proved to be a haven for "lame ducks" who could not accomplish the regular work in
four years. Cornell still maintains a five-year curriculum and is much pleased with
its operation. The five-year curriculum at Yale consists of two years of specialized
graduate work added to the regular three-year curriculum that leads to the Ph.B.
degree in engineering.

In the matter of fewer subjects a number of the best schools are succeeding in keep-
ing the required number of credit hours below 18 per term, as at Cornell, Ohio State,

THE TIME SCHEDULE 55

Illinois, and Wisconsin. Under these conditions the tendency to congestion is relieved
to a certain extent by having a fairly large number of specialized curricula and allow-
ing some small choice of electives among the technical subjects in the last two years.
Both of these devices really result in a reduction of the amount of subject-matter
by a limitation of its range, and thus bring the schools face to face with the charge of
training narrow specialists instead of broad gauge professional men.

Thus far neither more time nor fewer subjects have as a matter of fact cured con-
gestion. For the amount to be learned in every field is so vast and is increasing so
rapidly that whenever a professor gets more time for instruction, he usually tries to
cover more ground; and this tendency is supported by many of the younger alumni,
who keep suggesting the addition of this, that, or the other bit of information that
was not given them in college, but would have been useful to them on their first jobs
if it had been included in the curriculum. This pressure to keep up to date, combined
with the natural reluctance of every teacher to abandon material he has once worked
up for presentation to the class, is fairly certain to produce congestion even after it
has been temporarily relieved. The real causes of congestion, however, with its well-
known symptoms of mental confusion, superficiality, and scurry for credit, lie deeper.
Their roots penetrate to the methods by which curricula are constructed and the edu-
cational conceptions on which they are based.

Engineering curricula were originally organized on a very different basis from those
in other professional schools. The earliest instruction in law and medicine was given
by the apprenticeship system. As these professions grew, it was found convenient to
gather the apprentices together in groups for class instruction by some particularly
well- qualified practitioner. These classes were then organized into schools controlled
and managed by practitioners, who, until recently, also gave the greater part of the
instruction on a part time basis. The first law and medical schools at universities were
practitioners1 schools appended to, but never fully assimilated by, the institutions
to which they were attached. Full time college professors of medicine and law are of
relatively recent date, and even now much of the instruction in these subjects is still
given in university schools by practitioners on a part time basis. The curricula of these
schools, therefore, developed out of apprentice courses and were framed by men in
daily contact with professional work.

In engineering, on the other hand, altho the apprenticeship method of training was
originallv employed and is still in extensive use, — about half of the professional engi-
neers in America to-day being shop-trained men (page 19), — this system of training
never developed into engineering schools to any extent. The first engineering schools
were founded by colleges, their professors were college-trained men, and their curric-
ula were devised by college faculties; professors also gave practically all the instruc-
tion with very little assistance from practitioners. For this reason the first technical
schools had a serious struggle to prove that engineers could be trained in schools.
Even now technological schools are classed in the Reports of the United States Bureau

56 STUDY OF ENGINEERING EDUCATION

of Education with universities and colleges ; while schools of law, medicine, theology,
dentistry, pharmacy, and veterinary medicine are classed together as professional
schools.

This dominance of the college of liberal arts in engineering schools has undoubt-
edly been a powerful factor in the development of the engineering profession. The
emphasis still placed in the curriculum on pure science, pure mathematics, and the
humanities, in spite of numerous vigorous attacks on them, is evidence of the extent
to which the ideals of the American college still dominate the technological schools.
But tho this protection of the conception of culture within the engineering schools
has tended to liberalize them and to prevent their becoming too materialistic, it has
not been an unmixed blessing; for that conception has been slow to adapt itself to
the changed conditions produced by engineering, and has tended to preserve several
fundamental practices that are now regarded as the probable causes of congestion and
of other serious difficulties in current curricula.

Prominent among these outgrown practices is the method of constructing and
changing curricula. When the students'1 hardships have become so obvious that they
can no longer be ignored, a committee is appointed to study the problem and sug-
gest changes. This committee usually requests each department to submit a statement
of its requirements and desires; and, while this is being prepared, compiles a table
showing how much time is allotted by other schools to each of the subjects included
in the curriculum. The departmental statements are also compiled so as to show how
much time is needed to fulfil all their requests. Generally the number of topics each
department considers essential is so large that the hours required to cover them all
would be double or triple the number available. The various claims are then discussed
in committee, reduced within reasonable limits by a process of cut and fit, and the
result reported back to the faculty. In the faculty debate that follows, each depart-
ment presses its claims for more hours, and numerous changes are suggested, debated,
and ordered made or not made by a majority vote. When the matter is settled each
department takes the time awarded to it and uses those hours in any way it likes. In
short, distribution of time among the departments is usually regarded as the chief
function of the faculty. Respect for departmental autonomy forbids any investigation
or scrutiny of the aims, the methods, or the results of the work of any one depart-
ment by the faculty or by any of its committees.

Under present conditions the members of the various departments in engineering
schools are selected in the main because of their abilities as specialists in their re-
spective fields. Since every competent specialist is always an enthusiast over his spe-
cialty, there is no limit to the number of hours he would like to fill or the amount
of information he would like to impart to the students, especially when the work is
conducted by the lecture method. Therefore congestion of the curriculum is inevita-
ble so long as each department remains sole arbiter of the content of its courses,
and there is no coordination among departments with respect to the amount and the

THE TIME SCHEDULE 57

nature of the subject-matter in courses, and no scrutiny of the results of each depart-
ment's work by some agency outside the department. The problem of congestion is
evidently not merely a question of the time schedule, but leads at once to such specific
departmental questions as: What is the minimum mathematical equipment essential
to every engineer, no matter what his special line may be ? What fundamental prin-
ciples of mechanics must be mastered by every engineer? In developing a mastery of
these principles of mechanics, what coordination of work among the departments of
mathematics, physics, mechanics, and engineering is most effective? Until such inter-
departmental investigations and experiments are the rule everywhere, instead of the
exception, congestion is likely to persist and grow more and more disastrous.

Investigations and experiments of this type are already under way at several
schools. Thus at the Naval Academy an effort is being made in the postgraduate de-
partment to coordinate mathematics with engineering by scanning the subject-mat-
ter of both to eliminate non-essentials, so as to make the treatment of each topic
as brief as is consistent with clear understanding; there is also an earnest effort to
arrange the material in both departments so that the presentation of the practical by
the engineer and of the theoretical by the mathematician come at about the same
time and complement each other.1 Similarly at Cincinnati, many of the problems
used in the mathematics classes are actual industrial problems brought in by the
students from their practical work in commercial shops ; and the work in English is
so organized that theme writing gives outlook to the technical courses and technical
reports are also exercises in English composition.

Important as are experiments of this sort in indicating present tendencies, their
benefits are limited to the schools where they are made, because their results are not
tested by methods easily recognized as valid, and the conclusions derived from them
are not expressed in terms intelligible and convincing to all. To be widely effective,
experiments must be checked by tests that are as free as possible from the personal
equation and the errors of subjective judgment on the part of the experimenter. There-
fore, ultimately, the problem of congestion leads, like the problem of admission, to
the need for more impersonal and generally intelligible methods of testing and meas-
uring the growth of abilities. The invention and perfection by experiment of objec-
tive tests of ability seems to offer the most promising road to progress toward a type
of instruction that places less emphasis on information and more on ability to use
information intelligently — toward greater cooperation among departments and less
of the specialized exclusiveness of departmental autonomy, and hence toward the
relief and the ultimate cure of congestion. This question is discussed further in the
following chapters.

The seriousness of the problem of congestion has been widely recognized. There is,
however, another closely related and equally important problem the significance of
which has not been so fully apprehended; namely, the order of sequence of the various

1 R. E. Root: Engineering Education, vol. vii, pages 190-196, December, 1916.

58 STUDY OF ENGINEERING EDUCATION

courses. In this matter the 1849 curriculum at Rensselaer (page 12) imported a French
style that has been followed implicitly ever since. The conception underlying this and
all later curricula is that engineering is applied science ; and therefore, to teach engi-
neering, it is necessary first to teach science and then to apply it. In conformity with
this conception the first two years of college work are almost universally devoted
wholly to learning the fundamental principles of chemistry, physics, and mathematics.
Onlv when the student has passed a satisfactory examination on these fundamental
principles and their various non-technical applications is he permitted to work on
engineering projects.

Some of the peculiar effects that result from this universal habit of teaching first
the theory, then the practice, are now beginning to attract attention. Instructors who
are close to freshmen and sophomores tell how bewildered and discouraged the under
classmen often are because, having come to college to studv, as they supposed, the
dynamic agencies for doing the world's work, thev find themselves merely continuing
their elementary and high school drudgery with books and abstract symbols. Doubt-
less some of the freshman elimination is due to this discouragement, and it has been
suggested that the drop in student grades in the sophomore year (page 33) may be
attributed mainly to this cause. The question has also been raised whether failure to
make good in these preliminary studies as taught, or to succeed in the tests as given,
is really conclusive evidence of lack of engineering ability.

Several of the schools visited have found that the introduction of "orientation'"
courses and talks by practising engineers on the real experiences of the engineers life
are effective means of increasing the interest and strengthening the morale of the
freshmen. A moving picture of an engineering enterprise in action is not without re-
sults. These realistic portrayals of the technique of practice lend reality to the book
work and arouse the professional ambitions of the hearers. The actual participation
in technical work under the cooperative plan at Cincinnati, Akron, and Lafayette, the
summer vacation work in industrial plants, and the summer surveying camps all tend
in the same direction.

Recently the conception that beginners might learn more quickly and thoroughly
if real experiences were coordinated with their study of theory has been carried one
step further by introducing real work into the class work itself. Perhaps the most
striking of the several recent experiments of this kind is that conducted by Professor
C. C. More of the University of Washington. Mechanics is generally placed in the third
year so that the students may be well prepared for it in physics and calculus. The
conventional course begins with the statement of definitions and the deduction of gen-
eral principles, followed by the solution of typical problems. Professor More begins by
asking the student to report on the safety of the sheet piling in a certain cofferdam
whose dimensions and location are pictured and described. Theory and principles are
worked out and proved as they are needed to solve the problem. Calculus and physics
are freely used. This complete reversal of the conventional order proved so success-

THE TIME SCHEDULE 59

ful that last year the same course was tried, including the calculus, on one section of
engineering freshmen, who mastered it with little more trouble than the juniors. As
a result, the entire engineering faculty now sanctions this order of topics from appli-
cation to theory as a great improvement over the older conventional one.1 Other simi-
lar experiments are discussed in subsequent chapters.

Altho the engineering faculty at the University of Washington approve of Pro-
fessor More"s new order for teaching mechanics, other instructors in mechanics who
cannot personally observe the results will be slow to follow or inaugurate similar
experiments because there are no generally intelligible objective tests and scales of
ability in tenns of which the results may be expressed. For this reason experiments
with the curriculum, either to relieve congestion or to secure more enthusiastic and
intensive work thru variations in the nature and the order of the topics, have at best
a limited effect. So this problem too settles down ultimately to one of inventing and
defining tests and scales to measure variations in ability. Further uses for such scales
are explained in Chapter XL

1 Cf. W. E. Duckering: Engineering Education, vol. iii, pp. 618-535. May, 1917.

Chapter X

CONTENT OF COURSES

One of the most striking and universally recognized features of the technological
schools is their lack of agreement on the content of courses that bear the same or simi-
lar titles. Some of the more marked differences in elementary chemistry, English, draw-
ing, and shop work have been mentioned in Chapter VII (page 38). Obviously the 52
hours of calculus at Rensselaer cannot have the same content as the 216 hours of cal-
culus at the University of Florida (page 24). Some of the courses in mechanics place
great emphasis on the absolute system of units while others use only the engineers'
units. In the treatment of descriptive geometry the number of essential problems
varies from 27 to 86 and the number of fundamental conceptions from 6 to 12. The
teachers of each subject not only do not agree on what equipment in their subject is
essential for an engineer, but they have not yet taken the first step toward such an
agreement, namely, the definition of the criteria that must govern the selection and
the organization of the content of their several courses.

The prevailing wide diversity in the content of courses is clearly a necessary result
of the general confusion as to ends, aims, methods, and rating of instruction. But
while the many strong points in the present system are duly appreciated, it is grad-
ually becoming evident that in training men for so definite a vocation as engineer-
ing, in which the various elements — science, mathematics, language, economics, and
hand work — are so intimately interrelated, some agreement as to aims and some
cooperation among departments in determining the content of courses is absolutely
essential. That this need is recognized at all the schools is evidenced by the numerous
common complaints among departments. The departments of engineering insist that
the preliminary work in mathematics and physics is unsatisfactory because students
who have passed these courses cannot use either mathematics or physics intelligently
in the later technical work. Conversely the teachers of mathematics and physics claim
that the students are poorly prepared in these subjects in high school and that the
engineering departments make unreasonable demands. All the other departments
decry the work in English and foreign languages as inefficient and wasteful of the
students' time.

To remedy these well-recognized difficulties, conference committees are frequently
organized and friendly meetings are held, in which each side explains its point of
view. The resulting changes, however, are few. At one school a professor of mathe-
matics voluntarily attended numerous classes in engineering subjects to get some
notion of the mathematical needs of these courses. The course he devised on the basis
of the information thus secured was so successful that he was called to a more respon-
sible position in another institution ; yet his colleagues did not carry on his experi-
ment. At another school a professor of chemistry conducts a volunteer class in Ger-

CONTENT OF COURSES 61

man in order that the students in chemistry may have a chance to get the practical
mastery of German that every chemist needs. One professor of civil engineering and
one of electrical engineering were found giving regular instruction to volunteers in
English composition, both written and oral.

In spite of the fact that deviations from established practice in teaching are not
encouraged, so that there is an almost universal disinclination to make changes, a few
important experiments are being made for the purpose of discovering more appropri-
ate content for courses. Prominent among these are two in mathematics, one at the
Massachusetts Institute of Technology and one at the University of Wisconsin. In
both the aim has been to construct a single two-year course in mathematics in place
of the customary but somewhat unrelated courses in algebra, trigonometry, analyt-
ical geometry, and calculus. Both courses have been published in textbook form;
the former in Woods and Bailey's Course in Mathematics 1 and the latter in Slichter's
Elementary Mathematical Analysis 2 and March and WolfFs Calculus.2 While the par-
ticular categories under which the various topics are arranged are very different in
these two courses, the underlying conceptions are similar, in that both attempt to
reorganize the content of the mathematics courses for the purpose of securing a more
logically coherent presentation. Each is a consistent working out of a mathemati-
cian's conception of the mathematical equipment needed by every engineer. This em-
phasis on logical sequence has undoubtedly a fascination to certain types of mind —
teachers of mathematics, for example. Its effectiveness with the great majority of stu-
dents may well be questioned, especially when the logic is expressed in curves and
symbols carefully detached from technical applications. Both of the courses just con-
sidered claim to pay particular attention to applications, but these are mostly of the
non-technical variety. In the Woods and Bailey text, out of 2288 problems for drill
in the application of mathematical principles, only 103 even mention material things;
while in Slichter's book, only 146 out of 1102 problems discuss concrete realities.

The experiments just described are typical of one method of attacking the problem
of finding more significant content for engineering courses. The emphasis in reor-
ganization is placed on more logical and coherent sequence of topics and a better
adaptation to modern scientific theories, with little attention to the introduction of
engineering content into the mathematical forms treated. To some extent the con-
tent of courses in physics and chemistry is being reorganized into more logical and
coherent presentations of current kinetic and ionic theories of matter. The methods
of instruction followed in experiments of this type are usually much the same as
those of the old standard courses.

A second type of reorganization of content is being worked out by Professor H. M.
Goettsch at the University of Cincinnati. After sixteen weeks of preliminary train-
ing very similar to that ordinarily given in courses in elementary chemistry, the fresh-
men work in the laboratory from 8 a.m. to 4.30 p.m. for ten weeks solving problems

1 Two volumes. Ginn & Co., 1907. 2 McGraw-Hill, 1914.

62 STUDY OF ENGINEERING EDUCATION

of industrial chemistry. Projects such as "Make baking powder and determine whether
it is better and cheaper than any you can buy" are assigned without any instructions
or references, and the student is required to work out his own salvation in the library
and the laboratory. In the period of ten weeks he completes a number of these pro-
jects covering a wide range of topics, but little effort is made to present the topics
in logical or any other sort of orderly sequence. Much emphasis is placed on synthetic
work and on the cost of a given product by different processes; while chemical analysis
and the ionic theories of matter, which usually occupy the centre of the stage in chem-
istry courses, here take a subordinate place. The course in mechanics devised by Pro-
fessor C. C. More at the University of Washington (page 58) is another example
of this type of reorganization of content in which the logical sequence of topics is
subordinated to project work, and theory is evolved from rather than illustrated by
problems and experiments. Professor It. M. Bird conducts his course in elementary
chemistry at the University of Virginia on this plan with great success.

The content of courses of this type is clearly determined by considerations both of
logical completeness and of pedagogical vigor. For a series of interesting projects that
does not eventually compel the student to work out a fairly complete conception of
the large theories and the important principles of chemistry is obviously inadequate,
no matter how enthusiastic the students are in their work. On the other hand, altho
the suggestion that an effective course can be constructed as a series of apparently
disconnected projects comes as a shock to those who have grown up with logically
rigorous courses, the value of the enthusiasm engendered by well-chosen projects must
not be overlooked. Our most valuable information and training come from working
out projects that are really worth while; and if this method works in life, why not in
school? Especially since in educational institutions it is always possible to organize
significant projects into a connected series that leaves a well-developed conception
of the whole subject in the student's mind. This has been accomplished in the courses
just mentioned, where the summing up is done after sufficient facts to warrant sum-
maries have been secured. Their success should encourage others to further experi-
ments. The inclusion of considerations of values and costs in the content of these
courses is also an element of enrichment that deserves careful attention.

Those who find a series of projects an unsatisfactory course of instruction, but who
nevertheless wish to make the content real and of great value to the students may
find many worthy suggestions in Professor R. H. Fernald's course in power plants at
the University of Pennsylvania. While the topics in this course follow one another in
a logical sequence, they are chosen largelv from engineering practice, and include much
of the practical information every engineer must have when he goes to work. Many
of the problems are actual cases that really occur in engineering, so that they appeal
both to professional instincts and to the sense of values and costs — in fact, many of
them are openly problems that deal with costs of operation and maintenance in work-
ing plants. Yet the course is not a mere mass of useful information ; rather useful

CONTENT OF COURSES 63

information is the vehicle for conveying to the student a firm grasp of fundamental
principles and engineering methods of attacking and analyzing problems not only
from the point of view of scientific theory but also with due consideration of the limita-
tions imposed by practice and by costs. Professor Fernald's course has been published
in textbook form,1 and a number of other schools have adopted it and are following
it with satisfaction.

The emphasis given in this course to the economic aspects of power plant problems
is an encouraging sign of the dawning recognition of the profound importance of this
side of engineering in technological schools. Most of the technical colleges now include
short courses in economic theory, banking, contracts and specifications, etc. ; a few
give some small amount of practice in figuring costs and making bills of materials
from drawings assigned by the instructors. Here and there the attention of the stu-
dents is directed to the practical difficulties of construction and the controlling power
of costs. There has always been and still is a strong aversion on the part of colleges
to placing emphasis on the material and financial aspects of the engineer's work. Yet
it is a burning question whether the commercial bearings of each subject cannot be
introduced into every course in such a way as to increase enormously its use and its
vitality without in the least impairing its inherent scientific value. The enrichment
of the content of courses by judicious appeal to practice and costs is a problem that
offers rich opportunities for further experiment.

But if experiments of this sort are undertaken in large numbers in every school,
there is obviously serious danger of actually becoming too materialistic, thereby sacri-
ficing powers of abstract thought and humanistic ideals on which real progress ulti-
mately depends. Efficiency in the mastery of materials without humane intelligence
to guide and control it is now recognized in all civilized countries as a curse. Hence
great care must be exercised in making these experiments, and every effort must be
made to enforce the truth that mechanical efficiency, while essential to success, is ser-
vant and not master. The opportunity offered to the humanistic studies by this situ-
ation has already been perceived at a number of schools, and many efforts are being
made to alter the content of the courses in English, in history, and in economics to
meet the obvious need. Perhaps the most striking experiment with this aim is that
now being made by Professor Frank Aydelotte in cooperation with the members
of the department of English of the Massachusetts Institute of Technology. At this
school English is a required subject for all students throughout the first two years.
The first half of the freshman year is devoted to general composition, with the object
of eliminating the more common errors of construction and of leading the student to
see that excellence in writing comes not so much from the negative virtue of avoid-
ing errors as from the positive virtue of having something to say.

The work of the second term of the freshman year begins with a class discussion
of such questions as : What is the difference between a trade and a profession ? What

1R. H. Fernald and G. A. Orrok : Engineering of Power Plants, McGraw-Hill, 1916

64 STUDY OF ENGINEERING EDUCATION

is the meaning of the professional spirit? What should be the position of the engi-
neer in society in this new era of the manufacture of power — that of hired expert or
that of leader and adviser? Is the function of the engineer to direct only the material
forces of nature, or also human forces ? Such questions readily arouse the interest of
engineering students and bring on thoughtful discussion, in which different points
of view are expressed by the students and debated with spirit. Essays by engineers
are then assigned for reading, and after further discussion each student is asked to
write out a statement of his own position on the mooted questions. These themes are
criticized in personal conferences in which faults are corrected by asking the writer
first what he intended to say; and, second, whether the sentence or phrase in ques-
tion really says it, rather than by reference to formal rules of grammar and rhetoric.
Those who have had experience with this work claim that once the habit of self-crit-
icism from the point of view of the idea is established, the student makes astonishing
progress in the ability to express himself clearly and independently ; he gathers hints
from all sources ; and in ways too complex for pedagogical analysis he is more likely
to acquire such power over language as he is naturally fitted to possess, than he is by
current formal methods. For the achievement of this complex end, the conventional
instruction in technique is too crude and clumsy to be of more than incidental use.

Having discussed the question : What is engineering ? the class proceeds in the
same manner to wrestle with such problems as : What is the aim of engineering edu-
cation ? What is the relation between power of memory and power of thought ? Is
there any connection between a liberal point of view and capacity for leadership?
What qualities do practical engineers value most highly in technical graduates? What
is the relation between pure science and applied ? What is the relation of science to
literature ? The authors read in connection with the discussion gradually change from
engineers to scientists like Huxley and Tyndall, and then to literary men like Ar-
nold, Newman, Carlyle, and Ruskin. The student seems to read this material with
no less keen interest than was shown for the writings of engineers ; so that thru his
own written and oral discussion of masterly essays each comes to work out for him-
self some rational connection between engineering, with which he began, and litera-
ture, with which he ends. No orthodox point of view is prescribed; his own reason is
the final authority. The aim is to raise questions which it may take half a lifetime to
answer, but the thoughtful consideration of which will give a saner outlook on life
and on his profession.

A similar experiment along analogous lines is being made by Professor Karl Young
and his colleagues in the department of English at the University of Wisconsin.
Reports indicate that this type of course is a great success there also. The materials
used in both these courses have been reprinted in book form for the convenience of
the classes.1

1 Aydelotte : English and Engineering. New York : McGraw-Hill, 1917 ; The Oxford Stamp, Essay X. New York :
Oxford Press, 1917 ; Foerster, Manchester & Young: Essays for College Men, New York : Holt, 1913.

CONTENT OF COURSES 65

The four typical experiments just described indicate that the reorganization of the
content of courses is being attempted with a wide variety of aims, such as more logical
coherence, better pedagogical organization, greater emphasis on the economic phases
of the work, or a broader and more humanistic outlook. Many other aims are con-
ceivable, and many combinations of these four are possible, so that there is unlimited
opportunity for the further experiments that are needed as a basis for the reconstruc-
tion of the curriculum. The current method of framing curricula by first distributing
the student's time among the various subjects by faculty action and then allowing
each department to fill in its quota as it sees fit leads to the impossible conditions
discussed in the preceding chapter. The way out lies in the direction of reversing the
process; that is, first determining by cooperative faculty investigation what equip-
ment in each subject is essential to every engineer, and then requiring each depart-
ment to discover by experiment how much time is necessary to give adequate control
of that essential equipment to the promising students.

In order to carry out this suggestion, entrance requirements must first be placed
on some such basis as that described in Chapter VIII, so that the technical school can
be reasonably sure that the majority of the students admitted show promise of suc-
cess in engineering. Then for each of the fundamental subjects common to all engineer-
ing curricula an answer must be found by cooperation among all departments to the
question :

What is the minimum equipment essential to every engineer, no matter what spe-
cialty he may eventually choose? The answers to this question must be stated in terms
of ability to accomplish rather than in the customary terms of topics to recite ; for
example, the familiar "algebra through quadratics" must read "ability to make alge-
braic computations as difficult as required in solving for x in

x + a x-a 3? _i»

x-a x + a a2-x?

After such statements of the minimum essentials have been secured, the respective
departments will be able to construct their courses intelligently and to devise objec-
tive means of testing their progress.

There are at present two serious obstacles to carrying out the plan here proposed.
One is the reverence for departmental autonomy, which makes all departments reti-
cent about making suggestions to one another and inclines each department to regard
any suggestion from another as unwarranted tampering with vested rights rather than
as an intelligent effort to benefit the students. The other is the lack of generally intel-
ligible and transferable scales and methods of testing. These two obstacles deprive
such experiments as are being made of the greater part of their potential usefulness, —
the former by limiting the scope of the experiment by the bias inevitable to every
specialist, and the latter by making it impossible for the experimenter to state his
conclusions in terms that are convincing to others. The chances for real progress in
vitalizing the content of courses are increased in proportion as departments cooperate

66 STUDY OF ENGINEERING EDUCATION

in defining the minimum essentials and as scales of ability and methods of testing
are liberated from the errors of individual judgment. It is here that the teacher has
his greatest opportunity for creative work; for when the content of a course is well
chosen and the subject-matter is effectively organized to meet both the scientific and
the human requirements, the game is worth the candle for the student and he plays it
writh energy and zest.

Chapter XI

TESTING AND GRADING

About half of the schools visited grade students on a numerical scale of 0 to 100,
with pass marks varying from 50 to 70. Two grade on a scale from 0 to 4, one having
3 and the other 2 for the passing mark. The remaining schools ostensibly grade on
literal scales (with per cent values attached); but of these, three have three grades
above pass, designated respectively by A, B, C, or M, P, C, or C, P, L; and two have
four grades above pass, indicated in the one case by A, B, C, D, and in the other by
D, G, P, N. As a result, whenever a student transfers his credit from one school to
another, it is very difficult to evaluate his record and determine his status in the
institution to which he comes. Tho all student grades are apparently reducible to
numerical values, a grade of 88 is hard to interpret even when you know the school
and the instructor that gave it, because each school and each instructor has a per-
sonal equation in grading.

After one year's experience with a group of students, a teacher of mathematics, for
example, undoubtedly possesses more information concerning the mathematical in-
terests and abilities of these students than can possibly be ascertained by a few hours
of examination or testing. But his knowledge is largely in the form of personal ex-
perience and intuitions based thereon, which cannot be expressed in the usual record
blanks and so is seldom transferred to other departments. The knowledge now pos-
sessed by the teachers in a school of engineering, tho abundant, is not accessible
thru records; but is segregated in departments and individuals, and confused by per-
sonal equations. Even tho ability to secure high grades in school and college seems
to be a stable characteristic of an individual (page 36), employers have long since
learned that college records are precarious guides in selecting men for jobs.

About ten years ago Professor Max Meyer of the University of Missouri started
a campaign to eliminate the personal idiosyncrasies of individual instructors from
academic ratings by requiring every professor to distribute his grades over his classes
approximately according to the probability curve. It was pointed out that when all
the students at a university are arranged in the order of their average grades, about
fifty per cent are found grouped about the middle grade, with about 25 per cent
higher and 25 per cent lower. Hence the University of Missouri defines its grading
system thus : " In classes sufficiently large to exclude accidental variations, approxi-
mately 50 per cent shall receive the grade M (medium) ; to the great majority of the
25 per cent above M the grade S (superior) shall be given ; and to the few most ex-
cellent students the grade E shall be assigned; the majority of the 25 per cent below
M shall receive the grade I (inferior), and the minority shall be given the grade F
(failure)." x In order to render the grading significant to the students, 30 per cent

1 Hyde : Proceedings of the Society for the Promotion of Engineering Education, vol. xxi, p. 175, 1918.

68 STUDY OF ENGINEERING EDUCATION

excess credit is granted for all work done with a grade of E, 15 per cent excess for
work of grade S, and a 20 per cent reduction of credit is made for work of grade I.

The results of this experiment at Missouri and of similar investigations at other
schools indicate that considerable progress is being made toward reducing the number
of professors who either mark most of their students A or else fail a large percentage
of them. The mere presentation without comment to each member of the faculty of
his own grade distribution curve superposed on the average curve for the whole
institution has been found to reduce abnormalities in grading without discussion or
faculty action. Clearly this work is developing in the same direction as are the entrance
requirements (page 49); namely, toward a reduction of the errors in grading that
result from personal equations. There is need and opportunity for further effort to
stabilize the distribution of grades along the lines of this experiment.

The study of the distribution of grades is now expanding in the direction of search-
ing for the reasons for strikingly anomalous curves. In the schools visited a number of
cases were found in which from 50 to 75 per cent of the students who graduated had
received grades just slightly higher than the pass mark (page 34). Experience shows
that when so large a fraction of a class receive such low grades there is some serious
difficulty, which can usually be removed by investigation' (page 35). As a result of nu-
merous such studies it appears that the grading systems in current use possess several
inherent characteristics which have been accepted so long as a matter of course that
their normal effect on the distribution of grades seems to have been largely overlooked.
Prominent among such characteristics are theconvention of granting the same amount
of academic credit for all grades of work above the pass mark, and the habit of leav-
ing the definition of the basis of testing and grading in each subject wholly in con-
trol of the instructors who do the teaching.

The harmful influence of both of these characteristics of current marking systems
is very generally recognized. Every college teacher knows well that many of the
ablest students regard it as an evidence of poor management on their part if they get
grades very much above the pass mark. College authorities have sought to break up
this student tradition by offering academic honors of one sort or another, like Phi
Beta Kappa, Tau Beta Pi, Sigma Xi, or honorable mention on the commencement
program. A further and more effective step has been taken by the University of Mis-
souri in granting excess credit for high grades, as just described. Other schools are
trying the experiment of adding to the regular grading a system of honor points, so
framed as to prevent the student from graduating on mere pass grades. But even
these devices do not render the grades intelligible to employers and to other colleges,
nor do they always inspire the student to maximum effort. The West Point grading
system (page 28), on the other hand, does act as a real incentive to good work and as
a genuine support for the maintenance of the honor system.

The reasons why grades under present conditions do not act as real incentives to
good work are very similar to the reasons why payment of wages to workers on the

TESTING AND GRADING 69

basis of time spent at work fails to result in maximum output and even tends to scale
down the efficiency of the skilful to that of the slothful. So long as the credit in both
cases is determined mainly by the time consumed, the only accomplishment demanded
being a certain minimum below which the job cannot be held, so long there is no real
incentive to speed up and show mettle. Hence workmen "soldier "and even deliberately
unite to deceive their employer as to how much work an able and ambitious worker
can do in a day ; and students have been known to practise analogous tricks on pro-
fessors. All of which has a decided tendency to concentrate grades in a small area on
the safe side of the pass mark. The device of granting bonus credit for high grades,
while it improves the situation, is not likely to effect a real cure until grades are a
truer measure of achievement than is at present the case. For the students know as
well as anybody that college grades are very ineffective measures of the type of abil-
ity that wins recognition in the world's work — they know of too many notable ex-
amples that fortify their own personal observations and convictions in the matter.

The real cure for "soldiering" in college work has already been found and put into
practice in one department, namely athletics. There the students submit gladly to rig-
orous discipline and exert themselves to the utmost in the games because the work
appeals to them as thoroughly worth while and the score is a valid and objective mea-
sure of achievement. In their studies, on the other hand, the game does not always
seem worth the candle, and their scores often depend as much on their ability to con-
form to the personal points of view of their instructors as on their real achievement
in mastering materials. For under present conditions each department — frequently
each individual instructor — sets all examinations and tests and determines the rela-
tive merits of the students by means of individual, subjective standards. College boys
understand this perfectly, for it is not unusual to find bright ones among them who
win high grades by studying the instructor rather than the subject. Obviously here,
as in the case of admission, the need is for more objective methods of measuring
student progress and more assurance that the tests used are tests of the abilities the
engineer needs to have developed, rather than of something else the exact nature of
which is at best vague, uncertain, and undefined.

The analysis of a large number of the examination papers and quiz questions in
current use reveals the chief reasons for the vagueness and uncertainty of the results
secured by conventional methods of testing. A large proportion of the questions can
be answered by reciting or writing memorized words, phrases, or equations. How can
the instructor decide whether correct answers to these questions mean merely a reten-
tive memory, or whether they indicate clear understanding of the relations involved,
or an ability to use them in practice? Again, many of the questions call for verbal
descriptions of apparatus or processes. The answers to questions of this sort are fre-
quently so ambiguous that it is impossible for the teacher to tell whether the stu-
dents do not understand the subject, or whether they are unable to express themselves.
Hence different instructors make estimates that may vary from 30 to 80 on the same

70 STUDY OF ENGINEERING EDUCATION

paper ; and there are no means of deciding as to which estimate is best. Finally, little
effort is made to arrange the questions in their order of difficulty, by placing the easi-
est first and the most difficult last. Occasionally some questions are given greater
weight than others, but the assignment of weights is apt to be an act of arbitrary
judgment on the part of the instructor.

Since tests control teaching, it is obvious that one of the most effective methods
of attacking the teaching problem is thru the study of tests. For the purpose of mak-
ing a beginning of such a study aimed at removing some of the ambiguities of cur-
rent examination practice, Professor E. L. Thorndike of Columbia University devised
for seniors in electrical engineering a series of objective tests, analogous to those used
in his experiments with freshmen (page 49). In planning the tests, and selecting the
types of activity that seemed most likely to reveal abilities essential to engineering,
Professor Thorndike was assisted by a volunteer committee consisting of Messrs. E. B.
Katte, Chief Electrical Engineer of the Grand Central Terminal, New York ; L. D.
Norsworthy, Professor of Civil Engineering at Columbia University; F. P. Keppel,
Dean of Columbia College; J. W. Roe, Professor of Mechanical Engineering at Shef-
field Scientific School at Yale; the secretary of the Carnegie Foundation; and the
author of the present study. Descriptions of the tests used in this experiment are given
in the Appendix (pages 117, 118).

While some of these tests appear at first sight very similar to ordinary examina-
tions, they are, as a matter of fact, constructed on very different principles. In the first
place each test is intended to measure a specific ability, such as arithmetical compu-
tation, geometric construction, paragraph reading, understanding of words, mechani-
cal dexterity, or comprehension of diagrams. Each of these is a single activity, altho
requiring a complicated coordination of psychological processes. Then the tasks are so
selected that their accomplishment can be indicated with little or no use of words,
so that ability to perform the task is not confused with powers of verbal expression ;
and the errors of personal judgment in deciding whether an answer is right or wrong
are reduced to a minimum. Because of this independence of the personal equation,
results obtained by these tests at different schools, or at the same school at different
times, are comparable with one another. Moreover, tests of this kind are capable of
indefinite extension by alternative tests that give commensurable results. In this way
the danger of cramming for any one set test may be avoided ; since after the success-
ful type has been found, it is a relatively simple matter to construct ten or twenty
alternate tests on the same pattern. Again, the successive tasks on each test are
arranged in the order of difficulty, beginning with one that can be correctly met by
almost all students of the degree of training in question, and progressing gradually
to one that can be done by only a very few of the most gifted. Such a test is a scale
up which the student climbs to the extent of his ability in the particular type of
activity under scrutiny; so that, when the test is well constructed, his relative rank
is determined without ambiguity by the difficulty of the task he can successfully

TESTING AND GRADING 71

master, rather than by an estimate of how much credit must be given for a partially
completed task.

Thru the courtesy of Mr. C. R. Dooley of the Westinghouse Electric and Manu-
facturing Company at Pittsburgh, these tests were tried out on a group of forty engi-
neering graduates employed by that company as graduate apprentices. These appren-
tices are given very varied tasks, are observed by superior officers with a view to per-
manent employment, and are given ratings on a series of essential characteristics by
every foreman under whose direction they work. The essential characteristics used in
these ratings are: physique, personality, knowledge, common sense, reliability, open-
mindedness, tact, initiative, attitude, originality, industry, enthusiasm, thoroughness,
system, analysis, decision, English, and ability. In addition to these ratings by fore-
men, the two officers of the educational department of the company who are in closest
touch with the work of the apprentices rank them after they have been there about
nine months, for general ability and for order of choice for employment by the com-
pany. The apprentices themselves were also asked to rate one another, as far as
acquaintance permitted, for promise of success in engineering.

The ratings thus obtained from the records by foremen, the estimates by the edu-
cational experts, the opinions of the apprentices themselves, and the tests were com-
pared in many different ways. Unfortunately the college records of the apprentices
could not be used, because so many different colleges with incommensurable grading
systems were represented in the group. As a result of the analysis it appeared that
the foremen's ratings would give as good a record if they used the six qualities —
ability, analysis, originality, thoroughness, enthusiasm, and common sense — instead
of the eighteen just mentioned. The order determined by the ratings by half the
foremen agreed fairly well with the order determined by the ratings of the other half
(correlation coefficient .48); and the order of merit in the judgment of one expert
agreed fairly well with the order according to the judgment of the other (correlation
coefficient .53) ; but the foremen's order and the expert's order did not agree so well
(correlation coefficient .24). The correlation of the order given by the tests with the
foremen's order was also .24 and with the expert's order .37.

The orders of merit given by the four different ratings were finally combined into
a single order, which most probably represented the best order as determined by all
available information. The individual orders were found to correlate about equally
well with this composite (correlations are: foremen's records .73, tests .71, appren-
tices .70, experts .60). Hence in this case the tests, which require eight hours' time,
appear to give as reliable an order of merit as do the judgments of either the experts,
the foremen, or the apprentices themselves after six months of experience with the
men in a specially well-organized industrial company. This does not mean that these
tests are infallible, for even a perfect measure of achievement under one set of con-
ditions would probably be in error, just as the judgment of experts would be in
error, as a prophecy of later years of work under different conditions. The subsequent

72 STUDY OF ENGINEERING EDUCATION

careers of those tested must be followed for a number of years and many other simi-
lar experiments must be made before the validity of any set of tests can be definitely
established. It does mean, however, that, in a given case, a systematic test of eight
hours may detect engineering ability and prophesy engineering success as effectively
as expert personal inspection of actual work over a period of several months. It is
this possibility that makes experimentation with this type of test so well worth while.
The tests herewith presented are in no sense final. They are first approximations,
requiring much study and trial for their perfection. Those who have studied these
experiments closely are convinced, however, that the method of attack here used is
sound, and that progress in the direction here indicated is both safe and sure.

Many experiments with objective tests of the type here described have been made
in recent years in elementary and secondary schools. Similar tests are being tried on
a very extensive scale on the members of the new national army by Major Yerkes, the
well-known psychologist, who has accepted a commission in the army for this purpose.
Industries, too, are beginning to look to these tests to guide them in the selection and
placing of workmen, in the hope of reducing the labor turnover that is costing the
country several hundred million dollars a year. Altho the movement is still in its
infancy, enough has been done to forecast what may be accomplished by further scien-
tific work in this field. In engineering, for example, it is conceivable that before long
admission to college and achievement in college may be liberated from the bondage
of personal equations as grading becomes less a matter of individual bias and more a
valid record of actual accomplishment. Then college grades may be transferable among
colleges; then academic marks may become significant to employers; then the results
of educational experiments may be stated in convincing terms; and then students may
come to respect their records and strive to beat them without artificial stimuli in the
way of academic honors and credit bonuses.

The greater the number of schools that undertake experiments with tests, the more
rapid the progress toward the attainment of these ends. It is not a question of merely
superposing a few tests of the type described on the present examination and grad-
ing system. Such superposition may well be a first step; but ultimately it is a ques-
tion of working the whole testing and marking system to a more objective basis, and
this is a long and laborious task. For the final rating must include and express the
enormous amount of information which teachers now gather about students by inspec-
tion of their work and by the regular examinations, quizzes, and reports, in terms that
are intelligible for scientific and practical use. Then a rating becomes a safe instru-
ment for vocational guidance, which is, after all, the fundamental problem of the
schools.

When grading is conceived as an instrument of vocational guidance, rather than as
an expression of the degree to which an individual has succeeded in conforming to an
established order of things, more information is needed than can be secured from pres-
ent tests and examinations. It is a striking fact that while most schools grade merely

TESTING AND GRADING 73

on academic work, most industries rate men on personal traits like character, initia-
tive, tact, accuracy, responsibility, and common sense. This fact has led a number of
schools to supplement their regular grades with estimates of personal qualities such
as these. At Purdue, the University of Kentucky, Pennsylvania State College, and
other engineering schools, elaborate records of personal impressions of students are
kept on file and used with effect in guiding students into suitable positions. Usually
the record card has the names of a number of the desired qualities printed on it, and
the instructor is asked to place a grade mark opposite each. Sometimes each instructor
does this in private, sometimes the grades are assigned after discussion in depart-
mental meetings. In either case considerable difficulty is experienced in selecting the
qualities to be graded and in deciding on the proper grade to be given to each individ-
ual for each of the qualities selected. Among the many schemes that have been devised
for this purpose two seem to be particularly suggestive to schools of engineering.

The first of these schemes was devised by Professor W. D. Scott of the Carnegie
Institute of Technology for the use of large business organizations in selecting em-
ployees and executives, and is now being used by the War Department at Washington
for grading army officers. The qualities selected for grading in this case are : 1 . Physique,
including bearing, neatness, voice, energy, and endurance ; 2. Intelligence, including ease
of learning, capacity to apply knowledge, ability to overcome difficulties; 3. Leader-
ship, including self-reliance, initiative, decisiveness, tact; and ability to command obe-
dience, loyalty, and the cooperation of men; 4. Character, including loyalty, reliability,
sense of duty, carefulness, perseverance, and the spirit of service ; and 5. General value
to the service as a drill master, a leader in action, an administrator, and one who can
arrive quickly at a sensible decision in a crisis. Each officer who grades candidates on
these qualities is required to construct a personal scale of reference for each quality
by writing down a list of five officers of his acquaintance, the first of whom seems to
possess the specific quality in a preeminent degree, and the last of whom has as little
of it as any one he knows. The third man is then selected as a mean between the two
extremes, and the second and fourth as means between the middle and the top men
or the middle and the bottom men respectively. The various grades are given numeri-
cal ratings from 15 for the highest to 3 for the lowest. The advantages of such scales
are apparent, since it is obviously easier to place a candidate on the scale by com-
parison with other men, than it is to make a numerical estimate of such composite
and abstract conceptions as intelligence or leadership. The method has proved so suc-
cessful in opei'ation that an Army Personnel Committee with Professor Scott in charge
has been established as an addition to the Adjutant General's office in Washington
to supervise this and other activities involved in sorting, grading, and testing men
for all kinds of army work.

The second suggestive method of rating personal qualities as a help to vocational
guidance has been used in the University of Cincinnati for a number of years. The
characteristics selected for rating in this case are of a very different sort, and are ar-

74 STUDY OF ENGINEERING EDUCATION

ranged in pairs of related opposites as follows : (a) physical strength — physical weak-
ness; (b) mental — manual; (c) settled — roving; (d) indoor — outdoor; (e) directive —
dependent ; (f) original (creative) — imitative ; (g) small scope — large scope ; (h) adapt-
able— self-centred ; (i) deliberate — impulsive; (j) music sense; (k) color sense; (^man-
ual accuracy — manual inaccuracy; (m) mental accuracy (logic) — mental inaccuracy;
(to) concentration — diffusion; (o) rapid mental coordination — slow mental coordi-
nation; (p) dynamic — static. These pairs of related opposites are printed on blanks,
and each instructor is asked to express his judgment of each student by checking one
or the other of each pair. The independent votes of the instructors are summarized in
the central office. The method of using this type of rating is obvious. No one would
think of advising a man of settled, indoor, dependent, self-centred, and static tem-
perament to undertake a job as superintendent of construction on a large viaduct or
bridge.

Under present conditions, when current testing and grading systems are more
largely estimates of the amount of static information possessed than of dynamic abil-
ities, it is evident that ratings of personal characteristics and dispositions are essen-
tial for vocational guidance. Whether this will be so or not when grades have been
made to express abilities, whether correlations will be found between various tem-
peraments and various types of ability or not remains an open question for further
study. In the meantime there is no investigation that is likely to give larger returns
in fruitful progress than the scientific investigation of testing and grading systems;
for tests control teaching, and objective records of achievement are one of the most
potent means of releasing creative energy in both students and faculty.

Chapter XII

SHOPWORK

In American technical schools shopwork still occupies a rather anomalous position.
Few teachers of the mechanic arts have been granted the title "Professor," and the
work itself is seldom recognized as being intrinsically of " university grade." Yet no
one denies that it is an essential element in the equipment of every engineer; and
therefore it has been tolerated by engineering faculties and allowed to develop as best
it could. As a result there is no agreement as to the purposes and methods of shop-
work. Nearly every school has a shop philosophy and a well-organized shop method
of its own.

The first engineering school, Rensselaer Polytechnic Institute, was not financially
able in the beginning (1824) to support shops of its own. Therefore the founder
directed "that with the consent of the proprietors, a number of well-cultivated farms
and workshops in the vicinity of the school be entered on the records of the school
as places of scholastic exercises for the students, where the application of the sciences
may be most conveniently taught." The students were required in the first three
weeks of the first term (page 11) to "examine the operations of artists and manu-
facturers at the school workshops under the direction of a professor or assistant, who
shall explain the scientific principles upon which such operations depend, four hours
on each of six days in every week." This plan is identical in principle with that now
in use at the Sheffield Scientific School at Yale. There the students spend their whole
time for three weeks before the opening of the second year in a well-organized course
of this sort called " mechanical technology." The boys do no actual manual work in
shops. The purpose of the course as stated in the catalogue is : "to acquaint the stu-
dent with the terms and processes in use in manufacturing and power plants, and to
give him some personal contact with engineering work before taking up his studies
in the classroom and the drafting room."

It will be noted that this type of course gives the student opportunity for first-
hand observation, study, and discussion of the mechanical technique of production
under real commercial conditions, but does not give him either manual skill and the
"feel" of the machine that come only from actual use of tools, or acquaintance with
the habits and the outlook of workmen. Hence the benefits derived from this work
are perhaps more like those derived from inspection trips, the value of which is un-
questioned.

A totally different solution of the shop problem is presented at the Worcester Poly-
technic Institute. At the founding of this school (1868) the Hon. Ichabod Washburn
gave funds with which to establish a small manufacturing plant on the campus. In
order to furnish a real shop atmosphere, twenty or more skilled journeymen are regu-
larly employed and articles of commercial value are manufactured and sold in the

76 STUDY OF ENGINEERING EDUCATION

open market. The students work side by side with these journeymen, but are relieved
by them of much of the drudgery that comes from the too frequent repetition of the
same operation. The instruction is given by means of a series of graded exercises upon
machine parts required for the business of the shop.

In his inaugural address as first president of Rose Polytechnic Institute in 1883
President C. O. Thompson, who originally organized the shops at Worcester, tells us
that this work was guided by the conviction that the more the students understand
the nature and the difficulties of actual practice, and the more they use theoretical
principles under conditions as like as possible to those of real practice, the greater are
their chances of becoming competent and successful engineers. Mere contact with prac-
tical work, however, is not enough. For the best results the student's work must be
subjected to the inexorable tests of business, so that he feels responsibility in the use
of valuable materials, and the stimulus that comes from knowing that he is making
something that some one else wants but cannot make for himself. Without the con-
struction of articles whose workmanship is subjected to the objective test of salability
in the open market, shopwork is liable to exalt the purely abstract aspect of mechan-
ical knowledge.

The shops at Worcester are still run as a manufacturing plant on a commercial
basis. But in addition to the regular instruction in shop practice and the construc-
tion of articles for sale, much attention is now given there to modern methods of "sci-
entific management." The students analyze the cost of production into its elements,
and determine the relative values of different methods of construction to meet the
limitations of manufacture and the market price. The organization and operation of
the manufacturing work of the shop furnish materials for the study of accounting,
time cards, depreciation, inventories, overhead costs, purchasing, and selling.

The Worcester plan, it will be noted, seeks to coordinate the shop instruction with
real conditions of industrial production in such a way that the students secure, in the
least possible time, manual skill with tools, understanding of the principles of machine
construction, and first-hand knowledge of manufacturing and commercial methods.
The manufacturing shop is a working model for the study of the technique of business
and of practice. The productive nature of the work and the objective test of its sala-
bility are two of its important characteristics that tend to make the experience signi-
ficant to the students.

Among the schools visited, two others, the University of Illinois and Pennsylvania
State College, regard the production of salable articles as an essential element of
school shopwork. At the University of Illinois the shop has been recently organized as
a manufacturing plant for the production of a two-cylinder gasoline engine. No effort
is made to market the machine, yet no difficulty has been experienced in disposing of
the entire output to the students and their friends. Manual skill is not made a spe-
cial aim, and there is no series of graded exercises to teach the fundamental operations.
The 300 or more operations required for the construction of the machine are all stand-

SHOPWORK 77

ardized, and instruction sheets, like those regularly used in scientifically managed
shops, are carefully followed by the students in all their work. All finished parts are
tested and faulty ones rejected.

No paid journeymen are employed, but each section of the class is organized as a
working unit, consisting of workmen, foremen, tool-room attendants, production man-
ager, storekeeper, inspectors, etc. Each student is moved periodically from one type
of work to another in such a way that when his three semesters of shop work are com-
pleted he has performed all the essential functions of operating the plant.

Each student is graded according to his efficiency in production. Since every shop
operation is standardized and has an experimentally set time limit, efficiency is de-
fined in terms of the actual time taken and the standard time. Grades are posted each
week and, like all objectively determined grades, they stimulate great rivalry for maxi-
mum efficiency. The importance of careful planning and complete utilization of time
is forcefully impressed, for the several sections are regarded as rival teams, and no
student dares waste time in shop lest his team fall behind.

In this Illinois plan construction is still an integral part of instruction ; but the
omission of the journeyman mechanics shifts the emphasis from actual commercial
production, subject to the objective test of salability in the open market, to instruc-
tion about methods of commercial production. The shop becomes a "shop laboratory ?
and the manipulations there partake of the nature of experiments designed to verify
the principles of production that are operative in the industrial world, rather than
to solve problems that arise in connection with their productive activities. As in most
current laboratory work, the chief problem for the student is likely to be that of fol-
lowing directions intelligently, rather than that of finding the answers to questions
that cannot be answered without making laboratory tests.1

The shopwork at the great majority of American technical schools is based upon
a notion that is very different from those that have just been presented. This notion
has existed for many years, but it was given great prominence by President Runkle of
the Massachusetts Institute of Technology in 1876. President Runkle was so much
impressed by an exhibit of Russian shopwork at the Centennial Exposition in Phila-
delphia that he immediately addressed a special report on this subject to the Cor-
poration of the Institute under date of July 19, 1876. He explains that in the Rus-
sian system all construction has been analyzed into a number of typical operations
which may be arranged in groups, each of which involves the use of a distinct type
of tool. The novice makes most rapid progress if he is first trained in the so-called
"fundamental shop operations11 without any idea of making any useful article. In-
struction in the use of tools is thus entirely separated from construction or produc-
tion; so that only after the student has satisfactorily achieved skill in filing, turning,
boring, forging, and the like, is he permitted to construct anything. Since the tools

1 Cf. B. W. Benedict: Shop Instruction at the University of Illinois. Bulletin, Society for the Promotion of Engineer-
ing Education, vol. vi, pp. 234-257, December, 1915.

78 STUDY OF ENGINEERING EDUCATION

required for instruction in the fundamental operations are relatively simple, it is pos-
sible at reasonable expense to equip an "instruction shop" that will accommodate as
many students as one teacher can instruct at the same time, thereby securing the
greatest economy of both time and money. Besides, the more expensive construction
shops are not essential at a school, since the young engineer, after graduating in such
a course, will find no difficulty in completing his practical education in great manu-
facturing works.

President Runkle was very enthusiastic about this type of shop organization, call-
ing it "a fundamental and complete solution of this most important problem of prac-
tical mechanism for engineers."'1 As a result, instruction shops were established at the
Massachusetts Institute and are still being operated with great success as instruction
shops pure and simple. The work is now so thoroughly well organized that about 300
hours of training suffices to give a young mechanic skill in the fundamental opera-
tions of his trade. The director of these shops, Mr. R. H. Smith, has published his
instruction sheets in two excellent handbooks of shop practice.

The inference that President Runkle drew from his studv of the Russian exhibit at
the Centennial Exposition, namely, that the instruction shops might be totally sepa-
rated from the construction shops without loss of educational value for engineers, was
very generally accepted as sound; so that the majority of college shops were and still
are organized on that basis. Undoubtedly the fact that the instruction shops were less
expensive to equip and maintain than the construction shops made this division even
more attractive at a time when funds were scarce and the financial problem loomed
large before the schools. Certain it is that in the great majority of schools there is no
direct connection between shopwork and industrial production.

This type of shopwork met a real need when it was first introduced, forty years
ago. At that time skill in machine tool work was often a real asset to a young engi-
neer in securing his first job. Manufacturing shops were not so numerous nor so well
organized as they are to-day. Under the present changed conditions, the question
is now being seriously debated whether the shop courses in the engineering colleges
ought to be altogether abolished. This question has been answered in the negative at
the University of Illinois by the recent conversion of the shops into shop laboratories
designed to teach the principles of industrial production, as just described. On the
other hand, the University of Cincinnati has answered it in the affirmative by the
establishment of its well-known cooperative plan.

The Cincinnati plan was first formulated by Dean Herman Schneider in 1899, while
he was an instructor in civil engineering at Lehigh University. In 1902 Dean Schneider
presented a full statement of his scheme to the directors of several large industrial
firms which were considering the establishment at Pittsburgh of a new technical school
to give an engineering training that would be better suited to industrial needs than
that then given in the engineering colleges. This plan was abandoned when Mr. Carne-
gie founded the Carnegie Institute of Technology in the City of Pittsburgh. Finally,

SHOPWORK 79

in 1906, Dean Schneider found an opportunity to make his experiment at the Uni-
versity of Cincinnati.

The mechanism of the scheme is very simple. The students are divided into two
groups, one of which is assigned to work in industrial plants while the other goes to
school. At the end of each bi-weekly period the two groups change places, so that the
shops and the school are always full-manned. In the shops the students work as regu-
lar workmen for pay, bat the nature of their work and the length of time each stays
on any particular job are subject to approval by the university. The emphasis of the
school work is on theory and principles, but these are well interrelated with the shop-
work by "coordinators," who visit each student during each shop period and then meet
the several groups during the university periods in special "coordination" classes for
this purpose.

The curriculum is completed in five years of 11 months each, so that each student
receives 27 months of university instruction. Since the regular four-year curriculum
in other schools requires about 36 months of actual instruction, it would seem at first
glance that the Cincinnati curriculum could not give as full a training in fundamentals
as is given elsewhere. This inference, however, is wholly unwarranted, because in the
27 months of industrial work the student gets a vast amount of practical knowledge
which is given in other schools in information courses, and because the close coordina-
tion with practice makes the theory more intelligible and significant to the students.
The graduates of Cincinnati have unquestionably as extensive a training in theory as
have those of other first class schools. In addition, the Cincinnati graduates are able
to command engineering positions at graduation without one — or two — year "ap-
prentice" courses, such as are required of men from other schools by a number of the
large corporations.

About one hundred of the industrial firms of Cincinnati and the vicinity are now
cooperating with the university in this work. These firms represent every important
phase of engineering, so that the university is able to arrange the work schedules in
such a way that each student progresses regularly thru every phase of his specialty,
from the crude and rough work to the more difficult and responsible positions. For
example, a civil engineer usually begins with pick and shovel as a member of a gang
repairing track. If he elects railroad work, he will progress to switch and signal work,
to bridge work, to general engineering work in the engineering department, and to
evaluation work. He will learn how to run regular trains and work trains, how to place
and operate the equipment for repairs or new construction, and how to calculate cuts
and fills — all as part of the regular work on a "real railroad." The employers, on the
other hand, also benefit by the arrangement; they have found the labor of the "co-op"
students both reliable and profitable.

Financially the cooperative plan is very economical both for the university and
for the students. The university has access without expense to shops and shop equip-
ment that are worth millions of dollars and are never allowed to deteriorate or be-

80 STUDY OF ENGINEERING EDUCATION

come antiquated. Since only half the students are in school at any one time, the same
school equipment is adequate for twice as many students as elsewhere. The result
is that the total cost to the university per student per year at Cincinnati is about
SI 30. At no other school of equal grade is this cost less than S250, and at the large
endowed schools it runs as high as S600 or even more. The money earned by the
student during his shop periods, while not sufficient to pay all his expenses, is of great
assistance, and makes possible an engineering education to many a worthy boy who
could not otherwise afford it.

In addition to the obvious financial advantage, the cooperative plan has many edu-
cational advantages. Not only is instruction combined with construction so that its
social use is obvious to the students, but the construction has three marked points
of superiority over that done in college shops. In the first place it is real commercial
production that must succeed or fail on its merits. A shop atmosphere does not have
to be artificially created. In the second place the variety of construction work is much
greater than is possible in any college shop. The students1 experiences are not limited
to those of making a gasolene engine or a drill press, but may include any of the activ-
ities of one hundred different manufacturing plants. In the third place the student
is thrown into close personal touch with workmen. He thus comes to know their point
of view in a sympathetic way and secures a conception of the human problems of
industry and of the appraisement of human values and costs that is invaluable to
him and cannot be acquired so well in any other way.

Another striking educational advantage is secured by this method of conducting
the shop instruction. Because it is obviously impossible for an industrial plant to
permit its workmen to spend time giving instructions to green college boys, many
have thought that the student must waste an enormous amount of time doing routine
manual labor. This loss is prevented by the "work observation sheets" that are given
the student when he begins a new job. These sheets contain from fifty to two hun-
dred questions concerning the details of the job, and direct him to sources of informa-
tion where he can find the answers. He is required to be able to answer and discuss
these questions during the "coordination periods." In this way the manual labor is
made the source of problems that are solved in the class-room and the laboratories.
Shopwork thus becomes a series of exercises in defining and solving problems. Under
these conditions it is much more likely to be intellectually fruitful than when it con-
sists in carefully following the specifications of standardized direction sheets.

But if the Cincinnati plan has proved stimulating to the students, it has been revo-
lutionary for the faculty. Cooperation and business methods outside have compelled
cooperation and business methods at home, with the results already discussed in Chap-
ter V (page 30). Departmental autonomy has practically disappeared, the spirit of
investigation has been liberated in the field of education, and it is probable that more
experiments in teaching are being made and objectively checked there than anywhere
else.

SHOPWORK 81

Dean Schneider's experiment is clearly much more than a novel and inexpensive
method of handling the shopwork. It is an effort to create a type of school that meets
the demands of an industrial age. It frankly recognizes that the present need is for
masters of materials who can humanize industry. It tries to emphasize rather than to
discourage the appraisement of values and costs, and endeavors to express idealism in
the mechanics of life rather than build ideals that are unrelated to human experience.

Because the educational conceptions on which the Cincinnati plan is founded are
so different from the currently accepted conceptions of school practice, it has taken
some time for other schools to recognize the significance of the venture. The scheme
was scoffed at as unworthy of a real university and more likely to produce skilled
"boiler makers,, than professional engineers. The graduates are still too young to
prove whether this criticism is to any extent valid or not. Meanwhile the cooperating
firms in Cincinnati eagerly absorb all the product of the school, while other schools
are introducing similar organizations. For several years the University of Pittsburgh
has been cooperating on the same principle with a number of firms, the new muni-
cipal university at Akron is organized as a cooperative school, and the Massachusetts
Institute has just completed arrangements whei'eby juniors and seniors in chemical
and electrical engineering spend a number of months under school guidance in in-
dustrial plants before graduation. A detailed account of the Cincinnati Cooperation
System, written by Professor C. W. Park, has been published in Bulletin 37 for 1916
by the United States Bureau of Education.

With such rich opportunities for education lying plentifully about in every indus-
trial plant, it is a striking anomaly that the schools make so little use of them. The
situation is all the more impressive because the cooperative use of industrial plants
results in a large reduction of the cost of schooling and gives the student the chance
to support himself partially in college. The neglect of the possibilities of shopwork is
responsible in large measure for the professional criticism that the graduates cannot
apply theory to practice, for the establishment by large corporations of apprentice
schools in which engineering graduates may complete their training on the practical
side, for the preference shown by many firms for shop-trained rather than college-
trained men, and for the insignificant percentage of production managers who are
college graduates.

On the other hand, the neglect of shopwork is not the result of carelessness or of
chance. It is due to a consistent effort to meet the professional demand that empha-
sis in school be placed on the fundamentals of engineering science. But while practis-
ing engineers are unanimous in this demand, they recognize that something is wrong
with the present system. The fundamentals that are presented in college do not seem
to be mastered in such a way that they function readily in practice. Yet common sense
instinctively feels that there is no essential contradiction in the practitioners position,
but that it is possible for colleges to teach the principles of science and develop a sci-
entific attitude of mind in such a way that both are readily transferable to practice.

82 STUDY OF ENGINEERING EDUCATION

The University of Cincinnati endeavors to do this by using the practical problems
of the shop as the basis of the theoretical work in the school. But the established en-
gineering schools hesitate to approve this solution. In spite of the fact that their real
aim is to develop men for intelligent production, they fear too close an intimacy with
industry. They shrink from offering short courses and extension work in mechanic
arts, like those which have done so much to advance agricultural production, because
this type of instruction does not seem to be "of university grade.ri This fear is justified
so long as shop practice is limited to training in the so-called "fundamental shop
operations" wholly divorced in "instruction shops" from production and contact with
workmen. But when the students are systematically guided, as they are in Cincinnati,
by work observation sheets and coordination classes, the shopwork not only develops
mechanical skill and imparts practical information concerning shop practices, but
it also serves as a source of problems and projects for theoretical analysis and solu-
tion in the university classes in physics, in chemistry, in mathematics, in mechanics,
in economics, in sociology, and even in ethics. The problems thus defined are not the
stock type of book problems that were made up to illustrate theories already demon-
strated in class; they are the real engineering problems of production that constitute
the warp and woof of the engineer's life. On this basis shopwork is perhaps the most
effective type of professional training, since it is a direct application of the adage —
Learn to do by doing.

Recently Dean Schneider has been able to express this fundamental educational
conception of the cooperative system in a manner that is easily comprehensible to
university men. Several of the industrial firms cooperating with the university are
supporting industrial research laboratories for the purpose of increasing production.
These laboratories are treated by the university exactly like every other section of
an industrial plant; so that upper classmen, who have shown ability in investigation
by the way in which they have discovered and defined problems in industry during
their earlier years of shop experience, are assigned here as assistants on research prob-
lems for their regular bi-weekly industrial tasks.

During the past decade a number of large industrial companies have established
in their plants research laboratories manned by eminent scientists of pronounced
research ability. These laboratories are supported by the industries, and are excel-
lent investments, because the increase in the efficiency of production resulting from
their labors saves each year more than the cost of their maintenance. Now that in-
creased production has become a national necessity, a large amount of attention is
being given to the question of the relation between the universities and the indus-
tries in the matter of research. Up to the present the Mellon Institute at the Uni-
versity of Pittsburgh is the only instance of cooperation between a university and
the industries in the maintenance and operation of a strictly research institution.
The success of this experiment, originally devised and inaugurated by the late Robert
Kennedy Duncan at the University of Kansas, has been so gratifving to the univer-

SHOPWORK 83

sity in bringing its professors in contact with industrial life, and to the industries
in reduced costs of production, that other similar institutes will undoubtedly soon
be established under the pressure of the present great national need. Industrial shops
are literally bursting with problems that call for scientific investigation of the high-
est order ; factories are filled with masses of observation and of empirical data whose
coordination and theoretical analysis would be of the utmost value to production if
scientists competent to accomplish the task could be found. Millions of dollars are
annually wasted in the United States by the duplication and repetition of investiga-
tions and experiments in several different plants because there is no pooling of prob-
lems or of scientific interests and no central bureau of information, record, and research
to which all could look for scientific enlightenment. The missing link is a technique
for coordinating learning and labor so that each may serve the other to the fullest
in increasing the intelligence and the economy of production as the basis of mutual
strength. The experiments with cooperative shopwork at Cincinnati and with indus-
trial research at the Mellon Institute at Pittsburgh are rapidly developing such a
technique. The engineering colleges are beginning to grasp the real educational sig-
nificance of cooperative shopwork, and industrial research laboratories at universi-
ties will surely be forthcoming as soon as the conception of their national scientific
and industrial importance is clearly defined. Some combination of the two will un-
doubtedly supply the ultimate solution of the problem of shopwork in engineering
education.

«■>'

PART III
SUGGESTED SOLUTIONS

Chapter XIII

THE CURRICULUM

In the preceding five chapters the larger problems of engineering education are dis-
cussed and a number of suggestions are offered concerning methods of investigation
that promise progress toward effective solutions. It remains to indicate how the vari-
ous conceptions presented may be integrated in a consistent and workable curriculum.

The question of admission requirements is treated with sufficient detail in Chap-
ter VIII. If a group of schools will take up the careful study of their entrance systems
and make experiments with objective tests and records of the students1 youthful
interests and achievements, it is certain that the percentage of elimination can be
reduced to at least a fourth of its present size, with an enormous saving of time,
energy, and money for both student and school. The effect on secondary education
would also be most salutary, in that objective entrance tests that measure ability
require a shifting of the emphasis in high school from learning facts to developing
ability, and tend to liberate teachers from the bondage of detailed syllabi and cram-
ming methods. In order to accomplish these ends it is necessary to expand the re-
corder's office into a bureau of investigation, and to equip it with a competent per-
sonnel for this work; for at present most college record offices are overburdened with
routine work and so cannot undertake this experiment without both expert guidance
and additional clerical help. It is more than probable that the expense thus added
will prove a real economy, because intelligent selection of students at entrance is
bound to reduce the waste that comes from trying to teach engineering to boys who
have no real engineering interest or ability.

The reorganization of the college curricula to accord with the suggestions in the
preceding chapters requires several radical changes from current practice. In the first
place the number of required credit hours per week should be less than eighteen —
preferably sixteen. This recommendation is not intended to decrease the number of
hours of work done per week by the students, but to make it possible for them to do
all of their work more thoroughly. It is, of course, obvious that such a reduction of
required credit hours cannot be satisfactorily made without extensive changes in the
content of the courses, for it would be disastrous to leave the distribution of time
among the departments as it is and merely try to organize them on a sixteen-hour-
a-week basis instead of on a twenty or twenty-four hour basis.

In the second place, the few experiments that have been made on the subject indi-
cate that college students do their best work when the number of different subjects
studied at a given time is not greater than five. In constructing a curriculum it is
desirable, therefore, to limit the number of simultaneous courses to four or five at the
outside. At Rensselaer they are limited to three, but the advantages of this are to a
certain extent offset by frequent changes in the three (page 25).

88 STUDY OF ENGINEERING EDUCATION

A third essential requirement of all engineering curricula is adequate provision
in the first two years for "orientation,-" contact with real engineering projects, and
practical experiences that make the boy feel that he has actually left high school and
entered upon a professional career. Orientation lectures to freshmen meet this require-
ment to a certain extent; practical work in surveying parallel with trigonometry
during the first term of freshman year is perhaps more effective for this purpose; a
course in mechanics, such as is now given to freshmen at the University of Washing-
ton (page 58), is excellent; but the cooperative system at Cincinnati (page 78) is the
most complete and thoroughgoing solution of this problem yet presented.

Practical engineering work is essential for the freshman not only because it appeals
to his professional ambition, arouses his enthusiasm, and gives him training in prac-
tice, but also because it helps him to master the theoretical work more fully and more
quickly. Every one knows that at present the engineering professors are seriously handi-
capped in their work with juniors and seniors because the students are notoriously
unable to make professional use of the principles of physics, of mathematics, and of
mechanics with assurance and accuracy. One of the most common complaints of em-
plovers is that even college graduates have serious difficulty in applying theory to prac-
tice. As has been pointed out (page 80), this weakness may be overcome by suitable
coordination of theory and practice during the learning process. Hence to the three
other requirements of effective curricula must be added this need for interrelation
between the concrete and the abstract throughout the entire college course.

Besides the four requirements that have been mentioned there are a number of
pertinent suggestions that demand attention in framing curricula. Thus there is a
widespread agreement among professional engineers that the college curriculum
should aim to give a broad and sound training in engineering science, rather than
a highly specialized training in some one narrow line; that considerable attention
should be paid to humanistic studies like English, economics, sociology, and history,
not merely because of their practical value to the engineer, but also because of their
broad human values; and that the young graduate should have some conception of
business management and of the most intelligent methods of organizing and control-
ling men.

It is well-nigh impossible to construct curricula that will meet all of these require-
ments and suggestions without giving careful consideration to many of the recent
investigations of experimental psvchology and to the rapidly increasing literature
of the new science of education. Every professor who takes a responsible share of
this work will find much to help him in the books listed in the Selected Bibliogra-
phy on page 127, for until college faculties appreciate the necessity for experiments in
teaching and grasp the significance of the results already obtained, progress is likely to
be slow. Therefore the first step for any school desiring to reorganize its curricula is
the appointment of a small standing committee composed of men who are interested
in the problem of better teaching and able and willing to give considerable time to

THE CURRICULUM 89

the work. This committee will need ample facilities in the way of clerical help, and
effective service on it will soon be recognized by everybody as one of the surest and
most expeditious ways of winning academic advancement. Unless a school is prepared
to place this study of education on a basis of unquestioned respectability, it is just
as well to continue the present methods of constructing curricula by debates on the
time schedule and of measuring educational progress in terms of hours plus a passing
grade.

When a suitable committee on instruction has been appointed and given adequate
support, its first big problem is that of the relations of the school with the industries.
Here the solutions are bound to be varied because, tho there is general agreement
that some actual experience in practical work is an essential part of the training of
every engineer, the environments of the schools are so different that no single type
of arrangement is likely to prove most effective for all. Even in industrial centres
like Cincinnati, Pittsburgh, and Boston, quite different schedules for handling coop-
erative shopwork are in use; and still others may be found that are more effective for
institutions in rural communities, like Cornell, the University of Illinois, or the Uni-
versity of Colorado. The important point is that in some way adequate provision be
made for personal participation in industrial work, for supervision of that work by
the school, and for stimulating the student to be ever on the watch for practical ques-
tions and problems which may be brought back to the school for discussion, theo-
retical analysis, and solution. Professor Thorndike found from his study of engineer-
ing college freshmen that 95 per cent of them do engage in productive labor; so the
problem is to make the time so spent fruitful by some form of supervision that may
prevent their wasting their energies as ushers in theatres or bell boys in hotels for
the sake of supporting themselves in college.

Having selected the type of cooperative industrial work that seems best suited to
the peculiarities of the environment of each particular school, the committee on
instruction may proceed to formulate a curriculum for the school work itself. In this
it is conceivable that the schools will reach conclusions that are more similar to one
another than is probable with the cooperative industrial work ; for if it is agreed that
the chief function of school work is to give the greatest possible mastery of the essen-
tial principles of engineering science, then there is a common foundation on which
all curricula must be built. The first step, therefore, in framing a course of study is
to define this common basis of all engineering as clearly as possible; that is, to make
a list of all the facts, principles, and processes that are essential elements in the equip-
ment of every engineer. Theoretically this is the plan on which present curricula are
founded, for they all have a common core made up of three distinct parts, namely,
science (mathematics, chemistry, physics, and mechanics), mechanic arts (drawing and
shop), and humanities (English and foreign languages). All of this common core is
usually explicitly required of every student, no matter what specialty he may choose.

In addition to this explicitly recognized core of common material it is customary

90 STUDY OF ENGINEERING EDUCATION

at present to require civil engineers, for example, to take brief courses in mechanical
and electrical engineering, since it is necessaiy that a road or a railroad builder know
something of steam machinery, turbines, electric machinery, and gas engines. Con-
versely, the modern electrical engineer must know something about steam engineer-
ing, girders, trusses, factory construction, and even tunneling; and the sanitary engi-
neer finds it necessary to understand at least the elements of hydraulics and the mech-
anism of pumps and pumping machinery. This instruction in one specialized branch
of engineering for students who are specializing in another is now generally supplied
by technical courses in the third or fourth years, sometimes by combination courses
required of all students, and sometimes by special short courses in one branch for
students in the others. Evidently there is a large amount of material which is now
presented in technical courses after specialization has begun, but which is really
essential to every engineer, and therefore might well be explicitly recognized in the
core of common material.

Without regard to the question as to whether the subject-matter of this common
core is well or poorly chosen and irrespective of the success with which the work is
given, there is a fundamental difficulty in the current organization of the common
core of all engineering; namely, the fact that it recognizes no inherent or intrinsic
relationships among the three categories under which the classification is made. The
sciences are usually treated as sciences pure and simple without regard to their func-
tion in engineering (page 39); in the mechanic arts the instruction shops are as a rule
purposely separated from the construction shops (page 78) ; and the humanities gen-
erally strive consciously and vigorously to get away from engineering in order that
the student may get at least a glimpse into the mysteries of language and of literature
and a touch of culture. As a result of this lack of inherent connection, many schools
have already dropped the requirement of foreign languages, because some faculties
recognize that French and German when taught as they are for purposes of drill in
grammar have no vital connection with engineering. Similarly some schools are seri-
ously considering giving up the shopwork, since it is not at all clear why skill in the
handling of tools is essential to every engineer. There has even been some talk of ceas-
ing to require calculus of every student, because there is very little obvious connec-
tion between some forms of calculus and engineering. Thus before a more effective
common core for all engineering curricula can be constructed, it is necessary to adopt
a classification of the subject-matter that obviously expresses the intrinsic relation-
ships of the several component parts to the needs of every engineer.

The categories for a new classification of this kind may be deduced from the fun-
damental aim of engineering. As has been frequently pointed out (pages 3—8), the real
purpose for which engineering schools were established is to increase industrial pro-
duction, because the ultimate aim of engineering is more intelligent production. But
every production project requires the coordination and adjustment of three factors,
namely, scientific theory, mechanical practice, and cost. A theoretically perfect ma-

THE CURRICULUM 91

chine that cannot be built is no more useless than one that costs so much that no
one is willing to buy it. Success in engineering comes to him who most often judges
soundly concerning the best adjustment of these three complex factors. Therefore
engineering education is likely to be more effective in proportion as it fosters the
development of skill in determining the most expedient adjustments among theory
and practice and cost.

It is customary in designing curricula to keep these three essential phases of engi-
neering distinct from one another and to teach them as independent units, leaving
their synthesis into well-organized mental processes to the student's own efforts. This
practice is so widespread that its validity is naively accepted as a matter of course,
and few seem to suspect that it may be connected in any way with the year or two
of floundering thru which most graduates pass after leaving college and before
finding themselves. Universal experience, on the other hand, seems to indicate that
the most effective method of learning is by doing; so that if engineering depends
ultimately on power to interrelate theory and practice and costs, a training that re-
quires the student frequently to interrelate these three fundamental factors is likely
to yield a better product than is secured from a training that largely ignores their
interdependence. A curriculum that recognizes the intrinsic relationships involved is
not difficult to construct after the fundamental common elements of all engineering
have been selected; but until these elements have been chosen, it is impossible to give
more than a general outline or skeleton, on which any school may easily construct
a program by filling in with subject-matter appropriate to its environment and its
educational aim.

A curriculum that satisfies all of the requirement mentioned above would include
at least four types of work. In the first place there must be actual participation in
real industrial work, either during summer vacations or better thru some form of con-
tinuous cooperation with industries. This industrial experience must be supervised
by the school and used as a source of problems and projects for scientific analysis and
study in laboratory and class-room. It should begin at the beginning of the freshman
year and continue at least until the work common to all branches of engineering is
completed. In the later years it may well take the form of cooperative work with an
industrial research laboratory (page 82). It is not necessary or desirable that all stu-
dents do the same type of thing, provided class meetings are held for the discussion
and exchange of experiences.

In the second place there should be engineering laboratory work, including draw-
ing and descriptive geometry; and this, too, should continue throughout the com-
mon portion of the course. Here the student would make the measurements and cany
out the operations needed to enable him to solve the problems and projects that origi-
nate either in his industrial or in his class work. These problems and projects should
be as far as possible framed in such a wav that the desired solution cannot be secured
without making the experiment; thev should not consist of mere verification of known

92 STUDY OF ENGINEERING EDUCATION

results or of repetition of standardized manipulations. Elementary surveying is a
fruitful source of problems of the right kind; the energy transformations and effi-
ciencies of different sorts of machines, prime movers, and motors require endless in-
vestigation, much of which is simple enough for freshmen yet rich in engineering
content. Questions concerning the kind of material to select under given conditions
of stress, wear, and cost are also excellent. Attention has already been called to simi-
lar problems now in use in mechanics (page 58) and in chemistry (page 61). All of
this material should require the constant use of the fundamental principles that every
engineer must know, and frequent problems involving the computation of relative
costs under various conditions should be discussed and solved.

The third type of work essential to the new curriculum is mathematics and sci-
ence, which should be developed systematically in logical order so as to furnish the
backbone of the course. The determination of the sequence of topics for the labora-
tory projects and for the classes in mathematics and science offers an opportunity for
investigations of the highest order, because it is obviously desirable that theory and
experiment be closely interrelated, and this requires agreement as to what are the
fundamental conceptions of mathematics, mechanics, and physics. The Society for the
Promotion of Engineering Education has made an admirable beginning of such in-
vestigations thru its committees on teaching mathematics and on teaching mechanics;
but the reports of these committees have not yet been generally accepted, and the
laboratory side of the problem has not yet received serious attention.

The humanistic studies make up the fourth type of work essential to the training
of every engineer. The professional criticisms of the schools indicate that this field
offers the greatest opportunity for effective changes in current practice, because lack
of good English, of business sense, and of understanding of men are most frequently
mentioned by practising engineers as points of weakness in the graduates of the
schools. The criticisms point out' two types of weakness, namely, lack of technical
facility in expression, in business, and in handling men ; and lack of appreciation of
and interest in literature, economics, and social philosophy. Clearly the humanistic
departments are not alone responsible for these weaknesses, for no amount of drill in
the technique of language will make a student write and speak clearly if he does not
think clearly; and training in clear thinking is as much the function of the teachers
of science, mathematics, and engineering as it is the function of the teachers of Eng-
lish. And if the professors in the technical subjects rigidly exclude from their instruc-
tion all discussion of human values and costs, is it reasonable to expect the students
to appreciate economics and social science? As every one is aware, languages, eco-
nomics, and social sciences are generally treated as " extras " in curricula, and are as
generally regarded as superfluous "chores" by the students.

The difficulty in present school practice evidently lies in the exclusion from the
technical work of all consideration of the questions of human values and costs; and,
conversely, the isolation of the humanistic studies from all technical interest. The

THE CURRICULUM 93

theory has been that engineering at best is tied to materials; but that it can be made
less materialistic by ignoring the question of dollars and cents in the technical work,
and by teaching science, mathematics, economics, and literature for their own sakes
entirely isolated from inherent technical relationships. This conception, however, is
gradually giving way, for the experiments described in the last four chapters indicate
that technical work is more impelling, and is, therefore, more fully mastered, when it
includes the consideration of values and costs; while humanistic work becomes sig-
nificant, and therefore educative, when it starts from and builds upon the professional
interest. And after all, the ultimate control of all engineering projects, as of all activi-
ties, is vested in some man's decision that the game is really worth while; and this
control is likely to be more salutary, the more completely the man who decides com-
prehends the full import of the values and costs involved.

A good example of one method of treating the study of English so as to develop
skill in expression, appreciation of literature, and a philosophy of values and costs
may be found in Professor Aydelotte's experiment with freshmen and juniors at the
Massachusetts Institute (page 63). If work of this kind were continued thru several
years, it might readily be made to include some study of all the political, economic,
and social problems which every engineer is compelled to meet. The experiment of
organizing a series of projects and problems in these subjects for class discussion, out-
side reading, and report, into a consecutive course that would give young engineers
some conception of the present social situation and of the engineers relation to it,
is well worth trying. It may be that such a course, by developing in students an
intelligent understanding of the meaning of engineering in modern life, would be a
powerful factor in defining the status of the engineer and in liberating his creative
energies for still larger service.

The best time schedule for a curriculum built along the lines suggested cannot be
determined in advance. It is therefore necessary at first to make an arbitrary distri-
bution of the 15 credit hours available and then make adjustments as experience may
dictate. Two schools, Brown University and the University of Washington, are try-
ing a new curriculum of this kind this year. At Brown the time of the freshman year
is divided in this way : mathematics 4, drawing and descriptive geometry 3, engineer-
ing mechanics 3, English 3, and chemistry 3. If military science is required, it might
be well to reduce the time for mathematics from 4 to 3 in order to make place for it.

It is also impossible to decide without experiment how many years will be required
to give this training in the essential common elements of all engineering. After the
essential topics have been selected, as much time as is required to teach them thor-
oughly should be taken for this purpose. Two years may be enough, but if this is found
to be inadequate, more should be assigned to this fundamental portion of the work.
The important thing is that the essential elements be first selected and then that time
enough to master them be given, instead of the current practice of assigning the time
and then "covering" as much as is possible within the set limits. No time schedule

94 STUDY OF ENGINEERING EDUCATION

of the proposed curriculum is offered here, lest schools be tempted merely to fit present
courses into the suggested schedule without first making the thorough analysis of
the problem here demanded. Such a simple rearrangement of the old bricks in a new
pattern will not be likely to accomplish the required results.

No provision is made for foreign languages in the curriculum just suggested. They
have been omitted because three-quarters of the 1500 practising engineers who re-
plied in writing to a question on this subject agreed that they had never found for-
eign languages essential to their professional careers, and half of them thought that
they should not be required. In addition, there is a growing conviction among the
schools that for students of engineering the time now spent in college on foreign lan-
guages may be much more profitably spent in other ways. If it appears that the for-
eign expansion of the national outlook necessitates facility in one or more foreign
languages, every effort should be made to ensure the acquisition of that facility be-
fore entering college. At West Point the cadets acquire all the control an engineer
needs over French in 200 hours of intensive training; and the technically minded
student is far more likely to become broad-minded and cultured thru studies of lit-
erature and social conditions in the manner just described than he is thru the type
of linguistic drill that is now universally given under the name of foreign languages
in high schools and colleges.

The organization of curricula here proposed is very different from that in general
use. Therefore it would not be wise to attempt to produce a curriculum of this kind by
merely substituting, say, engineering laboratory for foreign languages and the new
type of English for the old, without in any way changing the content or the methods
of instruction of the other courses. The new plan is based on the proposition that it
is possible to analyze engineering practice and to make a list of all principles, facts,
and theories that are essential to the equipment of every engineer, and then to or-
ganize this subject-matter into a curriculum in which the several types of work are
interrelated in such a way that their inherent relations are obvious to the learner.
Such a curriculum satisfies the professional demand for broad and fundamental train-
ing for all engineers and renders superfluous the requirement of two or three years
of pre-engineering work in a college of liberal arts. It does not prepare specialists,
and hence specialization is the topic of the next chapter.

Chapter XIV

SPECIALIZATION

The preceding chapter suggests methods that may be profitably employed in
framing a well-coordinated curriculum designed to give all students of technology
a broad and solid foundation in engineering science and practice, thru personal con-
tact with industrial work, experience in solving practical problems in the engineer-
ing laboratories, systematic instruction in mathematics and science, and thought-
ful consideration of the significance of human values and costs. The criterion by
which to determine what subject-matter may be included and what excluded is that
of common necessity ; so that all those principles, processes, facts, and theories which
are approved by a board of expert judges as essential to the equipment of every
engineer are included, and all others are excluded. The course of study thus organ-
ized will be called the common core of the curriculum. How may provision best be
made for specialization when a student has satisfactorily mastered this common
core ?

Evidently the first step toward successful specialization is intelligent sorting of
the students, so that each is led as definitely as possible into that type of work for
which he is best fitted temperamentally. This requires that while the students are
working thru the common core of studies every effort be made to discover the par-
ticular abilities and specific bent of each, not only by means of ordinary examinations
and academic grades, but also thru objective tests of graded difficulty (page 50), per-
sonality estimates by members of the faculty (page 73), consideration of boyhood in-
terests (page 53), and observations of each student's reactions to the different portions
of the common core. In other words, the work of the common core offers an excellent
chance for vocational guidance; so that the student would not choose but rather be
claimed by the special field for which he is best fitted. Probably nothing would con-
tribute more to the success of the later specialized work than a systematic utilization
of this opportunity. A number of schools are ostensibly doing this now, but none has
yet achieved the degree of success that is easily attainable by intelligent experiment
with the various methods now in use in many places.

By the methods provided for sorting the students during the first two or three
years of their courses it should be possible when they finish the common core of the
engineering curriculum to divide them into five or six groups, each of which contains
all who have special qualifications for one of the major lines of professional work.
For each such group a curriculum must be framed on the same plan as that used for
the common core. Thus for the civil engineering group a competent committee would
first select all the elements essential to all civil engineers but not already included
in the common core, and these essential civil engineering elements would be organ-
ized into a consistent curriculum composed of the same four types of work required

96 STUDY OF ENGINEERING EDUCATION

for the common core. A similar selection of subject-matter has to be made for the
mechanical engineering group, for the electrical engineering group, and for each of
the other major groups which the school desires to develop.

As with the common core, so here, the amount of time needed to master the mate-
rials selected as essential in each group has to be determined by experiment. It may
well happen that more time is required for electrical engineers than for civil or min-
ing engineers, but this is no real objection; the conception that four years of study
makes any kind of an engineer is a habit rather than a rational conclusion. If the
subject-matter chosen can all be shown to be really essential, and if the instruction
is intensive, then the school may well insist on time enough to do its work thoroughly.
This does not mean necessarily that more than four years will be required for thorough-
going training, for the present congestion of curricula is in large measure due both
to the presence of subject-matter which cannot be justified on the ground that it is
essential, and to the teacher's habit of underestimating the student's actual ability and
capacity for significant work.

The number of these semi-specialized groups at any one school may well depend
on the location and the capacity of the school. The great majority of institutions will
probably have one for each of the commonly accepted branches, as civil, mechanical,
electrical, and chemical engineering. The mining group has already been somewhat
separated from the others by the establishment in mining districts of state schools
of mines, so that a number of strong schools elsewhere no longer offer courses in min-
ing engineering. While it is clear that every technical college should offer the com-
mon core, it is an open question how many of the semi -specialized groups each should
attempt to supply. It is conceivable that some schools might do much more thorough
work if they followed the example of Stevens Institute and specialized on one or two
groups. It may even happen that a number of the smaller schools will find it to their
advantage to give only the common core and send their students for specialization
to the stronger schools. It may also be best for many of the students to leave school
when they have completed this general work, especially if leaving should be dignified
by the award of a suitable certificate or diploma.

On the other hand, there is an urgent need that a number of the schools add to
these semi-specialized groups one in production engineering or engineering admin-
istration, as it is called at Pennsylvania State College and the Massachusetts Insti-
tute of Technology. The seriousness of this need has been emphasized by war con-
ditions, which have demonstrated how essential it is to apply engineering methods
to accounting, to the management of men, and to the organization of business, if
maximum production is to be attained. Until recently most schools have specialized
in design, with the result that at present fully ninety-five per cent of the production
managers in manufacturing plants are not college but shop-trained men. The oppor-
tunity for the college-trained engineer is now very much larger in the field of pro-
duction and administration than it is in the field of design, so that the most striking

SPECIALIZATION 97

development of the engineering schools in the next twenty years will probably be
made in the direction of the former.

Throughout the period of semi-specialization it is desirable to continue all of the
four types of instruction comprised in the common core, but the technical work of
the several groups may be very different, each along the line of the group specialty.
In the humanistic work, however, the subject-matter presented may well be the same
for all, because the engineering attitude which these studies foster is the same for
all. By this means it is possible to develop among the engineering students a unity
of purpose and outlook which will be a great asset in developing a professional con-
sciousness among engineers, because it tends to establish engineering standards by
which to interpret and attack the industrial and social problems of the day.

The systems of grading and personality analysis used during the early portion of
the course should also be retained, in order that the semi-specialized work may fur-
nish the basis for more accurate guidance of each student into the particular line of
work for which he is best fitted.

When the student has completed the semi-specialized work he should be well
grounded in the fundamental principles of engineering science and in the theory and
practice peculiar to some one of the major branches of the profession. If during this
training he has shown particular ability in some specific line of work, opportunity
should be given him to pursue his specialty in elective courses of highly technical con-
tent. These courses, however, should not consist, as many of the senior electives do
now, of detailed study of the technique of such subjects as heating and ventilating,
telephone wiring, roads and pavements, sewage disposal, and the like. If the student
has been trained as he should be in methods of attacking problems and gathering
information, he will probably make better progress in this kind of work in the in-
dustries than he will in school. Since these courses are for specialists who have elected
them after a long process of vocational selection, they should deal with the more
abstract and general phases of each subject. For the industrial phase of it, current
problems in industrial research with practice as assistant on some of them are appro-
priate; for laboratory practice, expert testing and trouble hunting might serve well;
on the scientific side, thermodynamics, the ionic theory, differential equations, func-
tions of a complex variable, wave motion, spherical harmonics, electromagnetic theory,
and all types of design, might be given for those whose bent and abilities warrant.

The plan of curriculum here proposed may seem to many very similar to the one
on which curricula are at present constructed. In a general way this is true, since both
the present plan and the one proposed agree in requiring all engineers to take the same
training at the beginning and in gradually separating them into specialized groups
later. The two schemes, however, differ radically in a number of important ways.
In the first place, current curricula are made by first setting the time limits for each
of the several subjects involved and then allowing each department to use its time
allotment as it may see fit (page 56). The new plan suggests that the faculty first

98 STUDY OF ENGINEERING EDUCATION

select the subject-matter that is essential to the equipment of every engineer and then
ask the several departments to determine experimentally how much time is needed
for their respective parts. The former is a centrifugal system, which magnifies depart-
mental differences, causes confusion as to the aims of the instruction, and wastes an
immense amount of time; the latter is centripetal, in that it operates to bring about
mutual understanding and hence definiteness of aim and economy of time.

Again, the proposed plan calls for the student's participation in real industrial work
and the utilization of his experiences there as a source of problems for theoretical
analysis and solution in the class-rooms. This is suggested as a substitute for most of
the current shop practice, such elements as should be retained in school being included
in the engineering laboratory work.

In the third place, the suggestion is made that engineering laboratory work be re-
quired throughout the first two or three years. At present such work is given almost
entirely in the last two years, because teachers generally believe that the students are
incapable of working intelligently at practical engineering projects until they have
been well drilled in theoretical principles and mathematical processes, in spite of the
astonishing manner in which boys of high school age learn without assistance to man-
age wireless telegraphy or gas engines. The proposed arrangement makes it possible
for the faculty to assign tasks that tax the boy's capacity and challenge his ingenu-
ity and his natural instinct for mechanism. Such tasks are almost sure to be effective
means of releasing creative energy and of directing it so that it brings the greatest
educational returns. Besides, under these conditions a student finds himself constantly
in need of the principles and methods developed in the classes in mathematics and the
sciences. In this way these subjects may be made significant to boys with an engineer-
ing bent; and, as is well known, the probability of learning thoroughly increases with
the significance of the lesson. The fact that a boy elects engineering indicates that
his mind is probably of the type that thinks most clearly in terms of specific objects,
and that grasps general principles most firmly when it has built these up by the syn-
thesis of a number of specific concrete cases. In combination with the cooperative
industrial work this engineering laboratory work furnishes also a rational foundation
for the proposed industrial research of the later years (page 82).

In the fourth place, the suggested organization requires a close coordination be-
tween the scientific courses of the common core and the practical work. At present
mathematics and the fundamental sciences are usually taught for their own sake, with
independent laboratories and little attention to technical applications. Under the
arrangement proposed the essential portions of the laboratory work in elementary
physics, for example, would be absorbed and taught in the engineering laboratory.
The elementary class work in physics would then be limited to the study of those
fundamental conceptions and principles of physics that are embodied in all engineer-
ing work; while the more elaborate and recondite portions of the subject would be
reserved for elective courses in the later years, where they would be better appreciated

SPECIALIZATION 99

by students qualified to grasp their significance. The same suggestion applies to chem-
istry and especially to mathematics, in which much that is ordinarily imposed on
unwilling sophomores would be eagerly grasped by selected seniors.

A fifth departure from current school practice is made in the recommendation to
emphasize the problems of values and costs. This topic has obtained scant recognition
in higher education for fear of contaminating university ideals with those of the mar-
ketplace. Such a fear is justified when the discussion is limited to monetary values and
costs. But when the subject is treated in some such manner as Professor J. A. Hobson
treats it in his Work and Wealth, A Human Valuation,1 it may be made the most
potent means of expressing the highest type of university spirit. Hence in ui'ging ex-
tended consideration of this subject it is taken for granted that the discussions will
not be limited to questions of dollars and cents. The control of engineering lies in the
hands of those who judge most accurately what enterprises men value sufficiently to be
willing to assume the cost. Because engineering education has confined itself largely
to technological training, engineers are seldom placed on state highway commissions
and other public boards that must decide how public funds shall be expended on engi-
neering enterprises. Too frequently the engineer is employed to do the technical work
of construction only after a board composed of doctors, lawyers, clergymen, bankers,
merchants, or politicians has made an appraisement of values and costs and decided
which project shall go forward and which not. The conception is rapidly developing
that the public interest might be better served if the engineer had more voice in mak-
ing such decisions, and to win greater influence in this direction he must be trained
to appraise correctly what men consider to be most worth while.

Because the appraisement of values and costs is the controlling factor in engineer-
ing, the final important change from current school practice that is suggested deals
with the humanistic studies. The usual method of treating these subjects in short in-
dependent courses in the technique of composition, literature, history, economics, and
so on, seems less likely than the method proposed (page 92) to develop the desired
insight into these profound problems of value and cost. The experiments at Wiscon-
sin and the Massachusetts Institute have progressed far enough to show how success-
ful this type of work is with freshmen in developing powers of both forceful expres-
sion and appreciation of good literature. Therefore it seems reasonable to expect that
the extension of this work into a consecutive course extending thru the entire curri-
culum and consisting of live discussions and extensive study of the best that has been
thought and said concerning the immediate and the ultimate values in life, offers the
most promising solution of the problem of culture for engineers.

The organization of curricula suggested in the foregoing chapters does not solve
the problem of engineering education. It does, however, create conditions that are
more favorable than those now prevailing for progress toward the desired solutions of
a number of the major questions. Thus objective tests for admission will undoubtedly

1 Macmillan, 1916.

100 STUDY OF ENGINEERING EDUCATION

enable the schools to reduce elimination by permitting only those who have some
demonstrable degree of engineering ability to enter, but much time and many experi-
ments will be required before this end is accomplished. Similarly the engineering work
in the common core, when measured by a suitable system of testing and grading, makes
the experiences of the first two or three years both valuable to technical men of all
grades and a further means of sorting the students according to their varying degrees
of engineering talent and ability. On completion of the common core an opportunity
is given for those whose capacities and temperaments lead them to prefer the prac-
tical phases of production to leave school with credit and go to work immediately.
Finally, specialization, which has been the source of so much trouble to curriculum
makers, is subordinated in the proposed plan to vocational guidance. Because the
common core contains real engineering work, it can be made a measure of engineering
ability that is much more searching and valid than is possible with the current ab-
stract, linguistic type of work. And because the common core contains the essential
elements of all branches of engineering, it gives the student a chance to choose his
specialty on the basis of experience, and furnishes the faculty with a broader range
of activities on which to base its judgment of special aptitudes for particular jobs.
Hence it diverts the attention of the faculty from the construction of specialized
grooves down which the student may be shoved by routine administrative mechan-
isms, to the study of the personalities, the temperaments, and the capacities of young
men who are eager to do the work for which they are best fitted. The required change
in attitude on the part of the instructor may be materially encouraged by changing
the conditions under which faculties serve along the lines suggested in the following
chapter.

Chapter XV

TEACHERS

In the summer of 1824 Amos Eaton was employed by Stephen van Rensselaer to
deliver a series of lectures on natural science, with experimental illustrations, at a
number of towns in New York State. The undertaking was so successful as an edu-
cational venture that a school was founded to train teachers to instruct farmers and
mechanics in the applications of science to industrial production. Thus the first Amer-
ican Engineering School owed its existence to the fact that a man of rare power as
a teacher had been found to conduct it. Following the inspiration embodied in it by
Amos Eaton, the Rensselaer School was for forty years a Mecca for teachers of applied
science. The published works of Professor Eaton prove that he was also a scientific
investigator of rare merit.

Thirty years later (1853) William Barton Rogers, also a geologist and pioneer
investigator of the geology of Virginia, moved to Boston to find opportunity to teach
industrial workers how to utilize science in their work. For twenty-five years Profes-
sor Rogers had taught natural science at the University of Virginia with such spirit
that the aisles and window-seats of his lecture room were often crowded by young men
eager to listen to the eloquent words of the teacher they so much admired. It was in
this spirit that he founded the Massachusetts Institute of Technology, and the nine
men whom he called to be fellow members of the first faculty were all enough inter-
ested in the educational problem to give a large share of their time to its study.

The interest in the teaching problem has never disappeared wholly from engineer-
ing schools, as it has from some of the universities. The first, and for many years the
only association for the study of education in colleges was the Society for the Pro-
motion of Engineering Education, which developed from the engineering congress
at the Columbian Exposition in 1893. For twenty-five years this organization has
carried on extended and valuable studies in its field, and there can be little doubt
that the recent rapid progress in engineering education has been in large measure
due to its activities. At present about one-third of all the teachers in American tech-
nological schools are enrolled among its members, yet in spite of this, a series of ques-
tions on educational aims, methods, and practices, which was personally presented to
the faculties at the first seven of the schools visited, proved highly unpopular; and
from eighty-five answers that were turned in it appeared that 38 per cent of the pro-
fessors spend no time at all in study to increase their understanding of educational
methods, 60 per cent spend from one to ten per cent of their time in this manner, and
but 2 per cent spend more than this. Obviously it is essential to pay much more at-
tention to the study of education if serious progress is desired.

Fifty years ago little was required of the college professor beyond his teaching.
The opportunities for participation in industry were relatively few, and scholarship

102 STUDY OF ENGINEERING EDUCATION

was universally regarded as a valid excuse for the im practicality of academic life. But
as industrial production has become more and more scientific, the bonds between the
engineering school and the industries have become closer, until now it is generally
recognized that intimate cooperation between the business man and the teacher is of
the greatest benefit to both, for thereby businesses grow more creative and colleges
more business-like.

The infusion of business methods into colleges is of fundamental importance for
good teaching. The tradition that scholars and investigators have no interest in the
material rewards of their labors is true only with regard to rewards over and above
what may be considered as a living wage. It is therefore just as essential for good
teaching as it is for good work of any other sort that the worker be relieved of worry
over the means of material support for himself and his family. During the past twenty
years schools have made very striking progress in the way of stabilizing teachers'
tenures and salaries both by larger endowments and appropriations of public funds
and by better business management. Nevertheless much still remains to be done; for,
tho teachers'1 pay has been slowly increasing, the median salary for a full professor
at state-supported institutions is now only $2500, and his appointment at some
schools has to be renewed formally every year. Even at universities where professorial
appointments are ostensibly made for life, teachers of distinction and even entire
faculties are at times summarily dismissed by the board of trustees.

Two other phases of the problem of laying firm foundations for the profession
of teaching have already been the subjects of extended investigation and report by
the Carnegie Foundation for the Advancement of Teaching. Bulletin Number Five,
on Academic and Industrial Efficiency, indicates how modern business methods may
be advantageously applied in university organization to liberate teachers from such
drudgery as care of buildings and grounds, purchasing supplies, publicity, keeping
records, financial management, and supervision of the material welfare of students.
At some of the larger schools professors are now free from duties of this sort, but
many a university man still spends much time and energy running a typewriter, post-
ing accounts, keeping records, or making out requisitions. Bulletin Number Nine
(1916), on A Comprehensive Plan of Insurance and Annuities for College Teachers,
describes the principles and methods that have been proved by ten years of experi-
ence and exhaustive study to be essential to a sound and effective system of insurance
and annuities for college teachers. An organization for putting this plan into action
has been formed and financed, thereby supplying one of the most essential ingredients
of the business basis on which a new liberalized education may safely be built.

The creation of stable financial conditions, the assurance of permanency of tenure,
of a living wage, of relief from routine clerical work, and of safe insurance against
old age, however, are not the only requirements for encouraging good teaching. In-
stitutions that have already achieved these fundamental prerequisites are still ham-
pered by educational conceptions and practices that discourage rather than encourage

TEACHERS 103

progress in teaching. Prominent among the usages that tend strongly to preserve the
status quo is the common practice of employing large numbers of recent graduates or
even of undergraduates as assistants in elementary instruction where the classes are
large. These assistants have usually received all their training in engineering schools
that pay not the slightest attention to the professional education of the teacher.
When such a novice begins his apprenticeship as teacher, his instruction depends
entirely on the attitude of the head of his department. He may be turned loose with-
out directions of any kind, or he may be given such minute directions that he is apt
to become a cog in a machine. In any case he instinctively imitates the methods and
practices of his own teachers, and is kept so busy with routine work that he has
neither the time nor the inclination to study or make experiments in teaching. That
so many eventually turn out to be good teachers is a tribute to Yankee adaptability
rather than to educational foresight, but the energy losses due to inevitable blunders
during the teacher's period of incubation are a serious drain on the intellectual out-
put of the schools. In some of the best institutions the number of assistants is greater
than the number of full time professors.

In selecting young graduates for assistants in teaching it is customary to pick out
those who have won high grades in the subjects they are called upon to teach, be-
cause mastery of subject-matter is obviously a first essential for teaching. Several
schools, however, have recently recognized that this apparently worthy practice may
be a serious handicap both to progress and to good teaching. Under present systems
of grading, high marks are quite as likely to indicate adaptability to the professor's
point of view, as they are to stand for either mastery of the subject or independence
of mind. Hence the inbreeding process, even when based on high grades, in reality
tends strongly to maintain a stolid conservatism which deplores innovations and
inhibits experimentation.

As a remedy for this condition, at one or two schools appointments to the teach-
ing staff are made only after the candidate has had one or more years of successful
experience in some phase of engineering practice. In a few of the more progressive
departments no man is ever appointed to a full professorship until he has won the
recognition of the technical experts in his own line of work. In this respect condi-
tions may be still further improved by freer use of graded objective tests and of per-
sonality ratings (page 73). Schools of engineering might also do well to consider
seriously cooperation with departments of education in the professional training of
teachers of applied science and in the scientific study of their teaching problems.

While the recruiting of the teaching staff from recent graduates tends to maintain
conditions as they are, and therefore to inhibit experiments in teaching, the current
indifference of colleges to problems of education is more directly traceable to the lack
of effective incentives for this work. After the teacher has been liberated from worry
over material support, his most impelling incentive is his desire for self-expression in
creative work. Universities recognize this fact, and have for forty years been struggling

104 STUDY OF ENGINEERING EDUCATION

to develop conditions that would free creative imagination and expand the bounds of
knowledge. In this they have been marvelously successful in the field of natural sci-
ence— so much so, that research and the publication of the results of research have
become the measure of success and the criterion of promotion in most institutions of
higher education in the United States. So completely has this conception of research
won recognition that academic promotion is now determined almost wholly by suc-
cess in it. This fact has produced the impression, prevalent in many quarters, that
research and teaching are in some way antithetical. Hence the question has often
been raised whether research should not be discouraged at educational institutions
in order that teaching might receive a larger share of attention.

It is unquestionably true that research, as at present treated, does interfere seriously
with teaching. Hundreds of college instructors whose interests lie in the human prob-
lems of education, rather than in the material problems of natural science, are now
being diverted from a study of the teaching problem and induced to undertake re-
search because academic promotion so obviously depends on the latter. Many a young
man with promise of making an excellent teacher is sidetracked by the requirements
for the Ph.D. degree and becomes instead, a mediocre researcher. Yet tho much that is
done under the name of research is but pseudo-research, the university is clearly right
in its position that the spirit of investigation is an essential factor of university life.

The difficulty does not lie in research itself, but in the limitations that still cling
to the common interpretation of it. Because research has been developed in the field
of natural science and has wrought such marvels there, its activities have unconsciously
been thought of as restricted to the problems of the material world. Because the tech-
nique of research and the units and methods of measurement have been so perfected
in the domain of natural science that great accuracy and definiteness of conclusion are
now possible, the early struggles for objectively defined standards and scales have been
forgotten. Hence it seems to many grotesque to talk about research in education and
the impersonal measurement of the vaguely defined and elusive qualities of human
beings. The fact that such measurements have as yet been rather crude and incon-
clusive is no reason against trying to improve them, especially now when the great-
est need of education is a technique and a terminology that will make the results of
experiments in teaching intelligible to every one. The inability of teachers to carry
conviction as to the merits of teaching and the meaning of experiments in education
is one of the chief reasons why teaching fails to receive the recognition accorded to
research. But as soon as it is possible to measure the results of teaching by impersonal
means, successful teaching will be as easy to recognize as profitable research. Objective
records of achievement have been found in industry to be one of the best incentives to
creative work. Hence the line of progress in education does not lie in the direction of
making arbitrary distinctions between research and teaching, but rather in the direc-
tion of removing the limitations placed upon the spirit of enquiry so as to encourage
its expansion to education and human relations generally.

TEACHERS 105

If university trustees, presidents, and faculties will unite in insisting on a scientific
study of their educational work, they will create the conditions needed to release
teaching power in the engineering schools. The professors who have teaching interest
and ability will welcome the opportunity to win recognition in work that arouses
their enthusiasm and stirs their imagination to creative effort just as the professors
who are interested in natural science have responded to the opportunity to promote
research. This should not result in a diminution of output in research, but in a de-
cided increase, because it tends to give each man the work he is best fitted to do, and
therefore leads ultimately to maximum efficiency.

The practical carrying out of this suggestion in any school is relatively simple, pro-
vided the faculty is ready and able to undertake it in a spirit of disinterestedness and
helpful cooperation, that is, in a real scientific spirit. Many practical hints concern-
ing essential details of operation have been given in preceding chapters. Any faculty
that will get together and take time to think out their problem can create an organ-
ism that will be a live influence in education ; and the doing of it will in two years
bring more joy to all concerned than forty years of weary effort to maintain things
as they are.

The good effects of an interest in the scientific study of education in institutions
of higher learning are not limited to the institutions themselves. For a number of
years objective methods of measuring the results of training have been gaining favor
in the lower schools. Until very recently the colleges and universities have looked
askance at the progress, and refused to do their share by giving professional training
to those whom they send out to teach. The colleges have thus been a positive hin-
drance to this development, and even now, when more than half of their graduates
teach, for a time at least, no professional work in education is as a rule required out-
side of the so-called teacher's colleges. Meanwhile the industries have been compelled
by the slowness of the academic development to establish schools of their own, and
have organized the National Association of Corporation Schools with an active mem-
bership of more than one hundred and twenty -five large corporations, which are as
much interested in the scientific study of vocational guidance and methods of training
as they are in industrial research. The scientific study of industrial education thus
ranks with industrial research as a bond of union between the engineering schools
and the industries. On the fuller development of both teaching and research depends
the realization of the ultimate aim of engineering education, namely, more intelligent
production.

Chapter XVI

THE PROFESSIONAL ENGINEER

At the first meeting of the Joint Committee of the National Engineering Societies
with representatives of the Carnegie Foundation for the Advancement of Teaching
it was agreed that an analysis of the requirements of the engineering profession was
one of the first essential steps in this study of technological education. Accordingly
a number of representative engineers were questioned in personal interviews concern-
ing the factors that are most powerful in determining success in engineering work and
most effective in building up the engineering profession. These interviews, together
with a study of the methods of rating college graduates in several large manufactur-
ing companies, indicated that personal qualities such as common sense, integrity,
resourcefulness, initiative, tact, thoroughness, accuracy, efficiency, and understanding
of men are universally recognized as being no less necessary to a professional engi-
neer than are technical knowledge and skill.

The statement that individuality counts for as much as learning for the engineer,
just as it does for the lawyer or the physician, seems like a veritable platitude. Yet
because the engineering schools have always made it their chief aim to impart the
technical information needed in industrial production, and because both scientific
knowledge and industrial practice have grown so rapidly, the attention of technical
schools has been focused chiefly on keeping up to date in science and practice. The
university emphasis on research in natural science has also tended to magnify the
importance of technique and to minimize the importance of personality; until cur-
ricula have become so congested with specialized courses that students generally re-
gard literature and sociology as unnecessary chores, to be endured rather than enjoyed.
Therefore it seemed necessary to consider the question whether this emphasis on tech-
nique is producing a new and higher type of engineer, or whether the engineering
profession still stakes its faith on the fundamental thesis that personal character is,
after all, the real foundation for achievement.

The results of this enquiry have already been published.1 Briefly, they showed that
fifteen hundred engineers, who replied in writing to the question : What are the most
important factors in determining probable success or failure in engineering? men-
tioned personal qualities more than seven times as frequently as they did knowledge
of engineering science and the technique of practice. A second circular letter stating
this result was then sent to the thirty thousand members of the four large engineer-
ing societies, and each was asked to number six groups of qualities headed respec-
tively Character, Judgment, Efficiencv, Understanding of men, Knowledge, and Tech-
nique, in the order of importance which he gave them in judging the reasons for
engineering success and in sizing up young men for employment or for promotion.

1 Engineering Education, vol. vii. No. 3. pp. 125-144, December, 1916; Educational Review, vol. 53, January, 1917:
Columbia University Quarterly, vol. xix, pp. 66-73, December, 1916.

THE PROFESSIONAL ENGINEER 107

More than seven thousand engineers replied to this request, and their votes placed
the Character group at the head of the list by a majority of 94.5 per cent, while
Technique was voted to the bottom by an equally decisive majority. A very similar
definition of the essential requirements of the engineer was formulated by Mr. A. M.
Wellington and published by him in the Engineering News for May 11, 1893, as
the conclusion of his well-known series of articles on the engineering schools of that
time.

This definition of the essential characteristics of the professional engineer is impor-
tant, because it proves that in spite of the enormous development of scientific infor-
mation and technical skill, the engineers of America have not been beguiled into
thinking that efficient control of the forces of nature is the sole requirement for achieve-
ment in applied science. Therefore the schools that intend to train engineers cannot
afford to neglect wholly the personalities of the students. While it is obvious that
personal traits like integrity, initiative, and common sense cannot be taught didacti-
cally like the rule of three, it is no less obvious that the growth of these essential
characteristics in students may be either fostered and encouraged or inhibited and
discouraged by the manner in which the school is organized and the subject-matter
presented. The problems of finding the best organization, of constructing the best
curriculum, and of discovering the best methods of teaching cannot be solved by logic
alone or by research in natural science. As has been abundantly shown in the pre-
ceding chapters, their solution requires extended experiments in education under con-
ditions that command respect.

The enquiry just described was completed in 1916 — a year that will always be
memorable in the history of engineering because it marks the beginning of a deeper
public recognition of the importance of the engineer's function in national life. In
that year the Federal Government, for the first time in its history, formally recog-
nized the engineering profession in the organization of the Naval Consulting Board,
the Council of National Defense, and the National Research Council. The first of these
invited the National Engineering Societies to nominate the members of the state com-
mittees on Industrial Preparedness which compiled an inventory of the industrial
resources of the country. Representatives of these societies are also members of the
National Research Council which has so effectively mobilized the scientific resources
of the country for national service. The establishment of the Engineering Founda-
tion, the United Engineering Societies, and the Engineering Council, and the recent
appointment of one man as secretary of them all, indicates the progress that is being
made toward the conception that there is really but one profession of engineering, in
spite of its apparent division into the several well-known branches.

War conditions have not only hastened public recognition of the engineer as an
expert in applied science and fostered solidarity of the profession, they have also opened
to him new fields of activitv. Back in 1914 most people believed that the war could
not last long because enough money could not be found to finance it. But three years

108 STUDY OF ENGINEERING EDUCATION

of experience have made it clear to every one that altho money is plentiful, it is use-
less if there is nothing to buy ; so that winning the war depends on increasing pro-
duction by an amount which has been estimated as the output of at least ten million
additional industrial workers. This extra production may be secured either by train-
ing more workers or by increasing the output per worker by engineering methods.
Hence there has arisen a pressing demand for men who can deal with labor and with
business administration in the engineering spirit. This demand is further emphasized
by the fact discovered by the Federal Trade Commission, that only ten per cent of
the manufacturers in the United States know their actual costs of production. The
determination of these costs requires a scientific study of production which only an
engineer can make. This work involves the analysis and apportionment of overhead
expenses, and thus leads at once to such fundamental questions of economic justice
as : Should the capital invested in idle machinery be paid wages tho idle workingmen
are not?

These new opportunities for the engineer have been gradually developing for a
number of years, but the profession as a whole has been slow to discern them. The
war has focused attention on them and precipitated a general recognition of them.
It is also evident that the mastery of these new activities depends in greater measure
than does mastery of the traditional types of engineering on the personality of the
man. The success of a designer of bridges or of machinery is not necessarily impeded
by lack of insight into human nature or of failure to comprehend the things that
mankind considers most worth while. But to the man who would deal successfully
with human labor and with business, personality is usually a greater asset than tech-
nical knowledge and skill. Therefore as engineering expands into the new fields now
opening before it, the conception that character, judgment, efficiency, and under-
standing of men are no less necessary than technical knowledge and skill will become
more and more impelling, and it will become more and more essential that schools
of engineering pav greater attention to the effect of their work on the personal de-
velopment of the students. Altho many specific suggestions as to how this may be
done have been made in the preceding chapters, a connected summary of the educa-
tional conceptions on which the suggestions are based may serve to make clearer why
the current organization is inadequate and how the proposed plan more fully meets
the present requirements and also supplies a sound basis for future growth.

The ultimate aim of engineering education has always been and still is more in-
telligent industrial production. Technical schools were founded when industrial evo-
lution had progressed so far as to create a pressing demand for men who knew how
to utilize the new and rapidly expanding knowledge of natural science to increase
and improve production. Science was then little taught in high schools and colleges,
so that both the public and the manufacturers were ignorant of it. Under these con-
ditions the obvious need was for scientific enlightenment; and this the engineering
schools were organized to supply. President Rogers's statements that the immediate

THE PROFESSIONAL ENGINEER 109

aim was to supply the intellectual element in production, and that this meant know-
ledge of the fundamental principles of science, were accurately true when he made
them (1861).

The schools have loyally pursued this aim, and have thereby contributed enor-
mously to the achievement of two striking results ; namely, the extension of science
instruction into the school system generally, and the development of public recog-
nition of engineering as a profession, coordinate with theology, medicine, and law.
At the present day an encouraging fraction of the people are reasonably intelligent
in science, the worker in applied science has become socially respectable, and there
has been developed a large conception of the engineering profession. Meanwhile the
methods of dealing with the material problems of industry in a scientific way have
been in a measure established, while the more intricate problems of organizing and
managing men are rapidly pressing forward and demanding engineering treatment.

The net result is that the curricula and methods of instruction that were devised to
supply the intellectual element in production by imparting knowledge of natural sci-
ence must be reorganized to meet the new industrial demand for engineering admin-
istrators and the larger professional demand for men of strong personality. The gen-
eral plan of the proposed reorganization is based upon an analysis of engineering prac-
tice into its three essential factors; namely, knowledge of engineering science, skill
in technique of application, and judgment in the appraisement of values and costs.
In every engineering project the overlapping claims of these three essential factors
must be harmonized with respect to the two fundamental elements of production,
namely, materials and men. Surely every engineer should have some conception of
the present conditions and problems in at least the general aspects of all these essen-
tial factors and elements. If this be granted, it is easy for any school to discover
where its curriculum is overloaded and where it is deficient.

This analysis also indicates how the present organization of school work can be
modified so as to furnish a more vital training for professional engineers. Thus, with
regard to materials, the schools do give careful instruction in the laws of physical
science and in the properties and uses of materials. Students are taught the relative
strengths of substances in the materials laboratory, kinematics teaches the principles
of gearing, the shapes of gear- teeth are worked out in the drawing room, the chemical
properties are taught in chemistry, mechanics deals with the forces required to over-
come inertia, machine work is relegated to the shop, and so on. But seldom is all this
information coordinated in a single practical problem, such as determining whether
mild steel, nickel steel, or phosphor bronze is the best thing to use in making a par-
ticular gearwheel; nor is the student ever asked to judge what combination is likely
to produce the most valuable result for the price. Yet this balancing of value and
cost is the controlling factor in all intelligent production.

Again, little consideration is given in courses in machine design to the comfort
and safety of the operator. Yet a punch press, for example, that requires a workman

110 STUDY OF ENGINEERING EDUCATION

to use both hands to operate it is far more intelligent than one that takes a large
annual toll of fingers because the driver has one free hand. Similarly the importance
of good heating, lighting, ventilation, and sanitation in increasing the output of
workers and in keeping them strong and healthy should always be taken into account.
These human factors enter in large measure into the determination of the values
secured for a given cost.

It thus appears that an adequate treatment of the first element in production in-
volves not only a scientific presentation of the laws of nature and the properties of
materials, but also an estimation of the values and costs from both the material and the
human points of view. The chasm between the school and practical life is due largely
to a failure to appreciate this fact. The introduction of the study of values and costs
in all their phases is the most direct method by which the schools can bridge this
chasm. Such study is also one of the most potent means of liberating creative energy
and of developing the spirit of investigation.

With regard to the second element of production — men — most schools at present
are doing practically nothing to arouse the students to an intelligent appreciation
of the problems of personal and human relations in production. Yet these problems
are every day becoming more acute, as indicated by such movements as Americani-
zation, human engineering, industrial engineering, and scientific management, with
their various efforts to improve the condition of the workman and to increase his out-
put in production. Many of the burning questions of the time lie in this field. The
loss to industry from turnover — the hiring and firing of workmen — is variously
estimated at from $150,000,000 to $400,000,000 a year. This expense adds from 7
to 20 per cent to the cost of production, and yet it injures rather than benefits the
product. What are the means to prevent turnover — better housing? better social con-
ditions ? higher wages ? profit sharing ? opportunity for self-expression ? juster economic
treatment? or more kindliness? Does the time-study method of speeding up work pay?
Does it really relax or wear out the worker? Does it produce the best type of citizen-
ship among the industrial classes ? These and many other similar unanswered ques-
tions are now waiting for an engineering analysis, and the country looks to the engi-
neering schools to train men who shall be able to answer them.

The training of men for the solution of these human problems cannot be carried
out in the schoolroom alone. The students must have some vital, first-hand, personal
contact with labor and workmen's conditions, either by a cooperative system, as at the
Universities of Cincinnati and of Pittsburgh, or thru the industrial service movement,
or in some other real and living way. Hence meeting this demand requires some form
of closer cooperation between the engineering school and the industries, better under-
standing of their mutual relations, and willingness on both sides to approach the
problem with the true research spirit. Such cooperation is needed not only to give
the students a vital conception of the workman's point of view, but also to furnish
that intimate personal knowledge of the details of production which cannot be secured

THE PROFESSIONAL ENGINEER 111

in college laboratories and shops. The lack of this sense of the physical properties of
materials is one of the chief reasons why less than five per cent of the production
managers in this country are college-ti'ained men.

It is, however, in the matter of estimating values and costs that this problem
assumes its most far-reaching consequences. The following are some of the typical
problems now pressing for solution in this field. What is the effect of good housing
on the development of the men, the efficiency of production, and the size of the profits?
What is the most effective incentive to maximum output — the bonus system ? oppor-
tunity for cooperation in management? opportunity for creative work? or shorter
hours? Does the assurance of justice and a square deal always tend to increase output
and also to foster the growth of a social spirit and of patriotism ? Does a plant pay
better when profits and output are increased by efficiency methods which give work-
men no chance for self-expression ? or when the development of the workmen is made
an aim as well?

Every manager will estimate the values and costs of these various methods of treat-
ing workmen in accordance with his own philosophy of life. There is as yet no con-
clusive evidence to prove these cases one way or the other. The successful manager
to-day is the one who estimates most accurately the human values involved. There-
fore, one of the most important contributions that the school can make toward the
education of the engineer is to guide him in developing an attitude toward life and
a philosophy of living that will enable him to judge rightly as to the things human-
ity considers most worth while. This is the meaning of the professional demand for
larger opportunities for cultural and literary studies. It cannot be met by merely
requiring more work of the ordinary academic type in history, in economics, and in
languages; but rather by introducing the consideration of values and costs into the
regular engineering instruction in some such way as that described in Chapters XIII
and XIV.

Some attention has already been paid by the engineering schools to the problem
of organizing men into effective working groups. At the Massachusetts Institute of
Technology, Pennsylvania State College, and several other schools special courses in
engineering administration are now given regularly. These courses deal mainly with
the various types of organization, the technique of different kinds of management,
accountancy, banking methods, and economic theoiy. All of this is, of course, essen-
tial to every engineering administrator. Industry sorely needs men thus trained ; for
the determination of costs is relatively easy so far as materials and labor are concerned ;
but the overhead, because it includes the cost of maintaining the organization, is a
matter of great difficulty. Analysis by engineers shows that the largest wastes in pro-
duction are in the overhead expenses, and result from faults in organization, such as
idle machinery, inefficient maintenance, poor routing, lack of foresight in purchas-
ing, delays from lack of instruction from the office, and so on. The study of overhead
expenses has led to many searching questions of economics and industrial justice,

112 STUDY OF ENGINEERING EDUCATION

with which the student will have to deal after graduation, but to which the schools
have not yet given serious attention.

But it is gradually becoming evident that the ultimate success of any organization
depends on its spirit; and this, in turn, is determined by the manner in which those
in control coordinate and interrelate the intelligences and imaginations of men. Great
organizers and leaders in industry are those who not only master the laws of nature,
but who also shape and control their organization thru their power of estimating ac-
curately the value which each worker esteems most highly. The engineers instinctively
recognize this fact and the educational implications of it when they declare that char-
acter, judgment, efficiency, and understanding of men are even more essential to the
practising engineer than is knowledge of the science and technique of engineering.

The educational interpretation of this professional demand is not nearly so mys-
terious as many have tried to make it. For the schools have already discovered that
students learn best when they are inspired by the conviction that the work is really
worth while. One of the most effective ways of making work seem worth while is by
constantly relating it to the consideration of the whole range of values involved and
all the costs. Every decision in daily life is an answer to the question whether the value
is worth the cost. The omission of this mainspring of all investigation and enquiry
from school work is perhaps the chief reason for the breach that separates the schools
from life. Hence the first message of the profession to the schools is — Motivate your
work by making it worth while; liberate the spirit of investigation by making the
game worth the candle; for character, judgment, efficiency, and understanding of men
develop best in men who work with enthusiasm and intelligence at things that they
believe to be worth while.

But there is a second message in the professional demand. For the spirit of investi-
gation accomplishes valuable results only when the investigator is resourceful, accu-
rate, and efficient in mastering facts, and when he has judgment, common sense, and
a wide perspective. These qualities depend on the ability to put things in their proper
places at the proper times, which ability depends in turn on the perception of intrinsic
relationships. The most successful organizer and executive is the one who perceives
relationships so clearly that he can build an organization which acts to liberate the
creative energy of each in ways that prove most helpful. Hence training in ability to
perceive relationships — interrelation — is one essential for the development of re-
sourcefulness, judgment, common sense, perspective, efficiency, and the rest. This is also
one essential to the acquisition of knowledge. Therefore in so far as the school work
develops the student's ability to perceive relationships, in so far do knowledge and the
desired personal traits increase together.

It thus appears that so far as the school work itself goes, the professional demand
for upbuilding of character along with increase of knowledge suggests at least two
promising lines of educational experiment, namely, motivation and interrelation. The
lower schools have long ago recognized the possibilities of these fields of investigation.

THE PROFESSIONAL ENGINEER 113

In fact, the educational progress of the past century has centred around these two con-
ceptions. Many fruitful experiments and a large literature have gathered about the
subject of motivation and the related topics of interest, formal discipline, and trans-
ferable training. In like manner much has been accomplished toward interrelation
thru efforts that have been made to correlate various subjects, as indicated by the
terms commercial-geography, business-arithmetic, household-science, domestic-econ-
omy, agricultural-chemistry, soil-physics, and the like.

The organization of curricula proposed in Chapters XIII and XIV is suggested as
one practical method of harmonizing the conflicting demands of technical skill and
liberal education. It coordinates the results of numerous individual experiments in
a consistent program. It recognizes all the essential elements and factors of engi-
neering as well as the educational requirements of motivation and interrelation. It
is not a Utopian dream, but a summation of the best that has been thought, said, and
done in education during the past two centuries. Finally, it embodies the modern
conception of the professional engineer, not as a conglomerate of classical scholar-
ship and mechanical skill, but as the creator of machines and the interpreter of their
human significance, well qualified to increase the material rewards of human labor
and to organize industry for the more intelligent development of men.

IH>'

APPENDIX

OBJECTIVE TESTS

The investigations here described were made by Professor Edward L. Thorndike of
Columbia University, as an integral part of the study of engineering education. Their
bearings on the problems of admission, elimination, and grading have been discussed
here and there throughout the report, but especially in Chapters VIII and XI. The
types of test used were the following:

Mathematical Achievement

M^. Arithmetical Problems. The student is allowed thirty minutes to solve five prob-
lems requiring arithmetical computation only. The problems are arranged in the
order of difficulty and the student is instructed to finish each before passing to the
next. The grade is determined by the number of correct answers. The first problem
of the series is :

1. A boy was tested with a series of sixteen problems in algebra. He did
nothing at all with six of them ; he did one correctly except for a mistake in
changing signs; he did two with many mistakes in each; he did the others per-
fectly. He finished the work in one hundred minutes. What was his total credit,
supposing that he is given a credit of 8 for each example right, a credit of 3 for
each example right except for changing signs, and a penalty of 1 for each minute
spent over an hour and a half?

M2. Algebraic Problems. This test is similar to M1 in that it consists of five problems
of graded difficulty, but these require the use of algebraic equations for their solution.
The first problem of the series is :

1. Let L stand for the safe load that can be hoisted by a hemp rope. Let C stand
for the circumference of a rope. If L = 100 C2 pounds, how many pounds are a
safe load for a hemp rope 2^ inches in circumference ?

M3. Algebraic Computation. A series of seven algebraic equations of increasing
difficulty, requiring substitution of numerical values and solution for x. The rating
is determined by the number of correct answers secured in thirty minutes.

M4. Graph Test. This is a series of five problems of graded difficulty requiring the
plotting of a series of points to represent various relations between dollars earned (d)
and hours of work (h). The first (d — 2 h) is worked out by way of illustration. The
others are:

7 h , ,,6 . , h2

a = r» a = 4 + h, a = T. ar>d " = o + 5
5 no

The score is determined by the number of equations correctly plotted in thirty
minutes.

M5. Geometrical Proof. The blank for this test contains a list of fourteen geomet-
rical facts and axioms which are given as proved, and the student is asked to prove
five theorems with the use of the data given. As in the other tests the theorems are
arranged in the order of increasing difficulty, and the rating is determined by the
number correctly demonstrated in half an hour.

118 APPENDIX

Achievement in English

E]_. Paragraph Reading. The blank for this test contains three paragraphs, the
first very simple, the second more intricate, and the last very complex. Under each is
a series of five or six questions as to the meaning of the paragraph. The student may
read each paragraph as often as he wishes in order to find answers to the questions.
A quick-witted man gets the point from a single reading, while a slower mind has to
reread. The score is determined by the number of correct answers written in thirty-
six minutes.

E2. Range of Vocabulary. The student is given a sheet on which is printed a series
of words, beginning with those in common use and leading up to relatively rare terms.
He is asked to write under each word a suitable symbol to indicate whether the word
means a flower, an animal, a boy's name, a game, a book, something to do with time,
something good to be, or something bad to be. As in the other tests the score is de-
termined by the number of correct answers in a given time.

E3. Completion of Sentences. This is the well-known Ebbinghaus test, consisting of
a series of sentences of increasing intricacy, from which key words have been omitted.
The student must supply the missing words in such a way as to make sense. The
score depends on the number of blanks correctly filled.

E4. Verbal Relations. Twelve minutes is allowed in this test to write the opposite
of each of a long list of words, as up — down, friend — enemy, and so on. The obvious
cases at the beginning are followed by more and more difficult cases, like " hiss,"
"some," "sacred," "if," and "whether."

Achievement in Physics

P^ Practical Laboratory Problems. Each student is given a complete set of the
apparatus required to solve eight simple practical problems in physics, such as
"connect the electric bell to the dry cell so that it will give a single stroke but will
not clatter when the circuit is closed." " With the two ounce weight provided, find the
weight of the meter stick." The solution of each is recorded on a suitable blank, from
which the score is counted.

P2. Described Problems. This is a series of five ordinary physics problems described
in words. They are arranged in the order of difficulty and the student is given twenty-
five minutes in which to answer them.

P3. Matching Diagrams. On one half of the blank is printed a series of diagrams
and pictures of physical apparatus, each marked with a number. On the other half
is a series of statements of physical facts or names of physical phenomena, each of
which corresponds to one of the pictures. The student writes at the head of each state-
ment the number of the corresponding picture.

P4. Completing Statements. This is the same type as E3 except that the sentences
in which the missing words are to be supplied are statements from physics texts.

P5. Completing Diagrams. There are eight diagrams representing physical appa-
ratus, but each is faulty because of the omission of several lines. The student must
complete the diagrams by drawing in the missing lines.

APPENDIX 119

C. The Stenquist Construction Test. Each student receives a box divided into six
compartments, in each of which is an assembled mechanical device and the pieces re-
quired to construct it. The first contains a simple piece of harness; the second, a snap
switch ; the third, a door lock ; the fourth, an electric bell ; the fifth, a clock work ;
and the sixth, an electric pull socket. The student is given fifty minutes in which to
construct the finished models from the loose parts. His score depends on the number
he accomplishes successfully in the given time.

The Results of the Tests

In the experiment with thirty-four Columbia College students each student's scores
in these tests were combined, and then the students were arranged in their order of
merit as determined by this combined score. To test the validity of this order, which
was called X, all available information concerning each student was gathered, and
the thirty-four were arranged in their order of merit in the following different series:

H. According to high school records in English, mathematics, and physics.

R. According to Regents'1 examination records in English, mathematics, and
physics.

C. According to college records for scholarship in English, mathematics, and
chemistry during the freshman year.

B. According to the combined judgment of the students.

T. According to the combined judgment of the dean and teachers.

A. According to age at entrance to college.

The series X was then compared with each of the other series and the Pearson cor-
relation coefficient l was computed for each comparison, with the following results :

Correlation of (X) with (H) High School Scholarship .62

Correlation of (X) with (R) Regents' examinations .74

Correlation of (X) with (C) Freshman year record .74

Correlation of (X) with (B) Opinion of classmates .74

Correlation of (X) with (T) Opinion of teachers .75

With the age at entrance to college, which is a perfectly objective, altho partial,
measure of the student's past ability to get thru the elementary school rapidly or to
begin his schooling young, or both, X correlates positively to an extent of .30. This
correlation could not be expected to be very close, even if the tests gave a perfect
measure of general scholarly power, and is in fact higher for the tests than it is for
H, R, C, B, or T, their respective correlations with A being .12, .21, .11, .12, and .19.

If we give each student, as a rating for general scholarly power, or ability with
ideas, or intellect in the sense of intellect applied to school tasks, a composite of H,
R, C, B, T, A, and X, allowing approximately equal weight to H, R, C, B, and X
and half weight to T and A,2 the rough total score in the tests correlates with this
composite (called Ig) to an extent of .84.

1 If the two series are identical, the coefficient is +1. If one series is the inverse of the other, the coefficient is -1.
A coefficient of zero indicates that there is no resemblance whatever between the two series. A coefficient of +.5
indicates a close resemblance, and one of +.9 expresses one of the closest resemblances found in nature — that
between the shape of the right and the left hands of the same individual. For detailed directions as to the method
of computing these coefficients, cf. Thorndike: Mental and Social Measurements, chapter xi. New York, Teach-
ers College, 1913.

2 T is given only half weight because it is already largelycredited underC ; A is given half weight because the age
at entrance to college is influenced by other causes than ability.

120 APPENDIX

Every one of the tests shows a positive correlation with this Ig, our best obtain-
able measure of general intellect. The Pearson coefficients are :

Mj. Arithmetical problems .625

M2. Algebraic problems .796

M3. Algebraic computation .625

M4. Graph test .614

M5. Geometrical proof .531

Ex. Paragraph reading .447

E2. Range of vocabulary .652

E3. Completing sentences .547

E4. Giving opposites .438

Pi. Laboratory problems .253

P2. Described problems .531

P3. Matching diagrams .309

P4. Completing sentences .654

P5. Completing diagrams .416

C. Construction test .180

Every one of these tests, excepting the construction test, is thus symptomatic of the
quality which makes a student enter college young, possess a good record in high school
and in the impartial Regents' examinations, do well during freshman year, and be re-
garded as of high general ability by his classmates and teachers. When all but the last
are combined into a single measure they are symptomatic of it in a very high degree.
A correlation of .84 is probably closer than that which would be found between the
student's average grade in freshman year and his average grade in sophomore year.

The rough total score in the tests which we have called X does not utilize them
to the full. In it each test is given a weight in rough proportion to the time devoted
to it. The tests, however, differ in their value as symptoms of Ig and should, there-
fore, have different weights. The probably best weights to attach to each test as a
symptom or prophecy of Ig can be determined by the method of partial correlation
coefficients, developed by Edgeworth, Pearson, Yule, and Kelley. The calculations,
which are necessarily too elaborate to be reported here, were made by Dr. Truman L.
Kelley. The numerical values of the coefficients for the various tests were found to be:

Mi.

Arithmetical problems

+ .3376

M2.

Algebraic problems

+ .0669

M3.

Algebraic computation

+ .2941

M4.

Graph test

+ .2755

M5.

Geometrical proof

+ .1523

Ei.

Paragraph reading

-.3412

E2.

Range of vocabulary

-.1429

E3.

Completing sentences

+ .2881

E4.

Giving opposites

+ .0149

Pi-

Laboratory problems

-.0552

P2-

Described problems

-.0731

P3-

Matching diagrams

+ .0912

P4.

Completing sentences

+ .6639

P5.

Completing diagrams

-.1910

Construction test

-.0377

APPENDIX 121

The partial correlation coefficients show substantially that a practically perfect
prophecy of Ig can be obtained by using the score of the five tests in mathematics,
the completion test in English, and the test in completing statements about physics.
Combining these seven scores so as to give them relative weights of about 4, 1,3, 3,
1 -J, 3, and 7 respectively, we obtain a composite measure (call it ME3P4), which cor-
relates with Ig to the extent of .87 (Pearson coefficient, .86 ; coefficient by the method
of squared differences in ranks, .87 ; coefficient by percentage of unlike-signed pairs,
.92).

We can then secure a practically perfect prophecy of Ig by these seven tests alone.
They tell us very closely what rating a student would have if we combined his high
school marks, Regents1 examination marks, marks during freshman year, grades as-
signed him by his teachers and by his classmates, age at entrance (taken inversely),
and score in our fourteen tests (C being excluded). The other three tests in English
and the other four tests in physics do almost nothing1 toward prophesying this Ig,
except in so far as they involve abilities already measured by the completion tests and
mathematical tests.

This does not mean that these tests in English and physics are of no independent
value as symptoms of any important abilities in these students. On the contrary, in
so far as we may trust the regression equation, they are proved thereby to be of very
great value, because they measure abilities which the entire record of school work,
examinations, and judgment by teachers and fellow students fails to measure.

Just what these other abilities are cannot be stated. Further experimentation and
the calculation of other sets of regression equations will be required for that. They
certainly include, however, in Pls P3, and P5, some aspects of certain abilities with
things rather than abstract elements thereof. These abilities seem likely to be of spe-
cial importance for future success in the study and practice of engineering. They
probably include, in El5 E2, and E4, certain abilities with language which depend on
interest in reading, memory of the meaning of single words and phrases, and efficiency
in keeping in mind the past context in reading a connected passage.

Negatively, they are abilities which the records of high school and freshman year
do not test, and which are other than the abilities for managing symbols and rela-
tions tested by the mathematical and completion tests.

Consider now the test in "Construction" or assembling parts to make mechanisms.
It shows a positive correlation of .18 with Ig, but this correlation is shown by the
investigation of the partial correlation coefficients to be due wholly to elements of
ability already fully taken account of by Ml5 M2, M3, M4, M5, E3, and P4. The con-
struction test C gives us primarily a measure of abilities not tested by the record of
school, entrance examinations, freshman year, and opinions of fellow students and
teachers. They are, presumably, concrete knowledge of mechanisms and skill in putting
them togetlier. Here again we have information that the ordinary school records and
examinations and the like do not give, and that is probably somewhat prophetic of
success in the study and practice of engineering.

On the whole, our tests fall into four groups, each contributing facts of sure, or
almost sure, importance. First we have M1? M2, M3, M4, M5, E3, and P4. When an
individual's scores in these are properly weighted and combined, we have a measure
(called ME3P4) which gives us substantially the same rating as if we combined (as

1 P3, the test in matching: diagrams with the facts or laws which they illustrate, does deserve a small weight (one-
seventh as much as the test in completing sentences about physics). The others deserve none.

122 APPENDIX

in Ig) his high school marks for four years in mathematics, English, and physics, his
entrance examinations, his marks for freshman year, his rating for general intellect
in the minds of his teachers, his rating for general intellect in the minds of his class-
mates, his age at entrance to college, and his score in our fourteen tests of ability in
mathematics, English, and physics. ME3P4 thus gives us, within a few days after a
boy enters an engineering school, a sufficiently accurate measure of what is commonly
regarded as general intellectual ability or promise as a student.

In the second place, we have Pl5 P3, and P5, the tests with the laboratory prob-
lems, matching diagrams, and completing diagrams.1 Call this combination Pi35.
These measure a mixture of abilities measured by ME3P42 and other abilities not
measured by ME3P4 or by Ig. These other abilities seem likely to be prophetic of
future success in engineering rather than law, teaching, or business.

In the third place, we have the test in mechanical skill, which has very little in com-
mon with the El5 E2, E4 group, and not much more in common with the M12345E3P4
group, but does have much in common with the P135 group, and also much that is
peculiar to itself. For the construction test C the correlations are: With the compos-
ite of El5 E2, and E4, .166 by the method of squared differences in ranks, .055 by the
Spearman foot-rule; with the ME3P4 composite, .25 (.247 and .250 by the two meth-
ods); with the P135 composite, .5 (.61 and .62 by the two methods).

In the fourth place, we have the tests in reading English words and paragraphs and
in giving opposites (El5 E2, and E4). This combination, which may be called E124, has
a good deal in common with ME3P4 (r equals .7), but practically nothing in com-
mon with P135 or with the tests in mechanical knowledge and skill (r equals .2 for the
former and .1 for C of the latter). They have much that is peculiar to themselves.

That each of the first three groups tells us something important about candidates
for an engineering education, probably no competent person will doubt. The future
careers of students tested as the thirty-four students were tested will give the mate-
rial for measurements of correlations which will decide their merits beyond dispute.

The fourth group of tests (El9 E2, and E4) give rather specialized information con-
cerning a candidate's mastery of the vernacular, which is useful chiefly as a means of
interpreting the results of other tests. If they were left out, we should have nearly
as adequate measures of the abilities of direct importance as indications of probable
success in the study and practice of engineering as we have from the entire series. We
would not, however, be able to tell so well as we could by their aid, whether failure
with verbally stated problems was due to lack of scientific and technical ability or to
the lack of linguistic ability.

These same tests were given to forty-one freshmen at the Massachusetts Institute
of Technology. No adequate measures of Ig (General Intellect) are available, but the
value of the tests appears from the following facts: Using the team of seven tests (all
five tests in mathematics, and the tests in completing English sentences and complet-
ing statements about physics), a boy's score in the tests resembles his average score
in the studies of freshman year more closely than does his score in the elaborate
series of entrance examinations given by the Institute. The average correlation be-
tween the score in these tests and the academic record in either half of the subjects of
the freshman year is +.45; the correlation between the median entrance examina-

1 P2, the test with the described problems, may belong with this group or in a special class by itself. It probably
involves in part the abilities involved by the ME3P4 group, those involved by the Pi35 group, and certain special
abilities to understand language.

2 The correlation of Pi35 with ME3P4 is .5 (.50 by the method of squared differences in ranks and .66 by the Spearman
foot-rule method): the correlation with Ig is also about .5 (.48 and .46 by the two methods just mentioned).

APPENDIX 123

tion mark and the academic record in either half of the subjects of the freshman year
is +.37. The correlation between the two halves of the academic record is only + .76.

The tests were given also to forty-one freshmen in the Engineering School of the
Univei'sity of Cincinnati. In this case also there were no such adequate measures of
Ig available as was the case with the thirty-four Columbia students. The tests, how-
ever, tell how well a boy will do in one half of his freshman studies just as well as his
marks in the other half do. That is, using the first three subjects (average of 12 marks),
the last four subjects (average of 16 marks), and the record in the selected weighted
team of tests (Ml5 M2, M3, M4, M5, and the tests in completing English sentences
and completing statements about physics), we find:

The resemblance between the score in the tests and the score in the first 3

subjects is + .49

The resemblance between the score in the tests and the score in the last 4

subjects is +.57

The resemblance between the score in the first 3 subjects and the score in

the last 4 subjects is +.49

This team of seven tests also tells how well a boy will be rated in his shopwork for
pay nearly as well as does either half of his marks in freshman studies. Neither one,
however, corresponds at all closely to this shop rating. The average resemblance of
half of the freshman marks to the opinion of the coordinator as to the boy's shop-
work for pay during the year is +.22. The resemblance of the selected team of tests
is +.14.

Considering the facts from both Cincinnati and the Massachusetts Institute, it
appears that the team of seven tests foretells how well a student will do in either
half of his freshman year studies about four-fifths as well as does his record in the
other half of these studies themselves.

It also appears from a study of the academic records made by the Columbia group
in their sophomore year, that these seven tests foretell how well a student will do in
the sophomore year at least three-fourths as well as does his entire academic record
for the freshman year.

Teachers of engineering will naturally inquire why any technological school should
not give these tests to its entering students instead of accepting a high school certi-
ficate or a regular college entrance examination. The chief reasons for giving these
tests in addition to those of the secondary schools are the following:

1. These tests give relatively much more weight to the ability to deal with "real"
situations and problems than ordin^i'v examinations do. In the mathematical work,
for example, problems which life could never offer, because to frame the problem one
must first know the answer, are rigidly excluded. So also are fantastic and artificial
problems invented for disciplinary purposes alone.

2. Ordinary examinations confuse the ability to think and do with the ability to
understand verbal descriptions and tell in words what one does think or do. The stu-
dent who has a good command of language thus gets undue credit. Ability to handle
verbally described problems in physics means, for example, ability to understand the
words, the necessary knowledge of physical facts and laws, and ability to express one's
response in words. A student might be able to repair an electric bell if he saw it, but
not be able to tell what the trouble was from a verbal description ; or, if he could do
the latter, not be able to tell in words how he would repair it. Ability to handle verbal
symbols is important, and these tests measure it, but they are designed to measure

124 APPENDIX

also and separately the ability to think with things and diagrams. Three of the five
tests in physics demand responses to actual objects or pictures of objects.

3. It has been shown that tests M1? M2, M3, M4, M5, E3, and P4 together give us
a practically sufficient measure of the abilities involved in and tested by ordinary
school achievements. Pl5 P3, and P5 give us something very different. The test for
mechanical skill gives us something still different. El5 E2, and E4 give us something
still different. If the ordinary examinations were so given as to be as commensurate,
objective, scientific, and convenient as these tests, they could be used in place of
Mls M2, M3, M4, M5, E3, and P4; but we should still need to supplement them by
P1? P3, and P5, and by the tests in mechanical skill.

4. A high school mark is simply a statement of relative position in that school.
The same mark has many values in different high schools; all of these are unknown
quantities until they are defined in terms of the actual tasks given during the school
course. If John Doe in School A was marked 85 and Richard Roe in School B was
marked 75, we do not know how much either knew or could do, or which was the
better.

An entrance examination mark has the same defects, altho to a much smaller ex-
tent. The examinations in different years may vary in difficulty, and the grades that
different examiners would attach to the same set of answers may vary widely. The
authorities responsible for these examinations could eliminate the former possibility
by proper investigations, and could reduce the latter to a harmless minimum by other
investigations. It is not known that they have ever made investigations of either sort,
altho the New York Regents' examinations seem to be rather free from both defects.

5. It is unlikely that the average school or entrance examination would show the
low constant errors and high correlations between different judges' scores which these
tests have. The measurements made by Elliott and others, indeed, lead one to expect
a marked inferiority in this respect. Until those responsible for these examinations
measure their constant errors and coefficients of reliability, we may fairly assume that
they will be inferior to tests devised with especial attention to objectivity.

6. The ordinary examination is a collection of tasks selected largely irrespective
of other criteria than that it be a "fair" test, and that it distinguish those below from
those above a certain standard for passing. These tests are constructed of steps of
increasing difficulty, thereby making possible a fairly definite determination of the
degree of difficulty where a student's efforts change from success to failure.

7. In the tests recommended here the plan of constructing the tests, and the details
of scoring them, are settled so that the work of arranging for them each year is greatly
reduced.

8. The value of all other measurements of an entering class, such as their records
in high school or records in the regular college entrance examination, is increased
when these tests also are given. They would be worth giving if only as a means of
equating to a uniform scale the grades of schools, different years, and the like. The
trouble with our present information about students at entrance is not so much that
it is intrinsically misleading, as that it requires common denominators to interpret it.
The record made in the school of engineering itself is one such denominator. These
tests furnish another. Each has its advantages. The two together will enable the of-
ficers of schools of engineering to interpret the records sent in by secondary schools
and examining boards, and to suggest improvements in the examining machinery by
which these records are secured.

APPENDIX 125

To prevent unfair preparation for the tests, and to permit repeated measurements
of the same individuals, it is necessary to have many alternative series of each sort of
test. These should be so devised that the same person would get approximately the
same score for ability in English, ability in mathematics, or ability in physics, no mat-
ter by what series of the tests he was tested. If all the alternative forms of each sepa-
rate test could be equal in difficulty, that would be still better. The plan of these tests
permits the selection of such alternates.

The provision of satisfactory alternative series of tests involves much experimen-
tation and statistical work, there being hardly any other satisfactory criterion of
"equally difficult" than "such that equal percentages of the same group of students
succeed therewith." The group must also be representative, and therefore large.

If the tests described here are found to be as useful in practice as they seem likely
to be, state examining boards and institutions interested in knowing what the abili-
ties of their entering students really are should cooperate to provide fifteen or twenty
alternative series. That number could, by interchange of elements and by easily ar-
ranged devices to detect and penalize heavily any student who had been " crammed "
for the specific tests, be made to last indefinitely.

Whatever the merit of these particular tests may be, it is certain that the criteria
by which any test should be judged are worth attention. An institution which uses
any set of examinations to judge the fitness of entering students should find the
coefficients of correlation (1) between each of such tests and another of similar plan,
(2) between the score given to each of such tests by one judge and that given by an-
other judge independently, (3) between each of such tests and the Ig or Mg or Eg
or whatever ability is supposed to be measured, and (4) between the total score of
the team of tests used to decide entrance and the Ig or F (some other measure of
demonstrated degree of fitness for the work of the institution). It should not toler-
ate a system showing a correlation below .9 for the team of tests with Ig or F in the
case of pupils from approximately equallv good schools. It should use the regression
equation or equivalent "cut and fit" methods to find the team of tests which gives
a correlation of .9 or more with a minimum cost of time and a maximum amount of
intelligibility of units, convenience, and easy extension by alternates and good effect
upon the teaching and learning of the lower schools.

Such an evaluation of a set of examinations requires knowledge of the theory and
technique of educational measurements and much labor, but there is no other sound
way. The merit of a system of entrance examinations is not a matter for divination
or faith.

1*1

SELECTED BIBLIOGRAPHY

>-''

SELECTED BIBLIOGRAPHY

The following list of books has been made short in order to encourage teachers to
read and study at least some of them. Each throws additional light from an inde-
pendent point of view on the problems discussed in this study.

Aydelotte, F.

English and Engineering. New York: McGraw-Hill, 1917.

Beard, C. A.

The Economic Foundations of JefFersonian Democracy. New York: Macmillan, 1915.

Clark, V. S.

History of Manufactures in the United States. Washington: Carnegie Institution, 1916.

Dewey, John

How We Think. Boston: D. C. Heath, 1910.

Democracy and Education. New York: Macmillan, 1916.

Ferguson, C.

The Great News. New York: Kennerley, 1915.

Gantt, H. L.

Industrial Leadership. New Haven: Yale University Press, 1916.

Hobson, J. A.

Work and Wealth, a Human Valuation. New York: Macmillan, 19l6\

Democracy after the War. New York: Macmillan, 1918.

James, E. J.

The Origin of the Land Grant Act of 1862. University of Illinois Bulletin, vol. viii,
No. 10, 1910.

Kandel, I. L.

Federal Aid for Vocational Education. The Carnegie Foundation, Bulletin No. 10, 1917.

Keppel, F. P.

The Undergraduate and his College. Boston: Houghton Mifflin Co., 1918.

Mann, C. R.

The Teaching of Physics for Purposes of General Education. New York: Macmillan,
1912.

Pritchett, H. S.

What is Religion? Boston: Houghton Mifflin Co., 1906.

Rice, J. M.

Scientific Management in Education. New York: Hinds, Noble & Eldridge, 1913.

Roe, J. W.

English and American Tool Builders. New Haven: Yale University Press, 1916.

130 SELECTED BIBLIOGRAPHY

Schneider, H.

Education for Industrial Workers. The World Book Company, 191 6.

Taylor, F. W.

The Principles of Scientific Management. New York: Harpers, 1913.

Thorndike, E. L.

Education. New York: Macmillan, 1914.

Theory of Mental and Social Measurements. New York: Teachers College, 1913.

Wellington, R. G.

The Political and Sectional Influence of the Public Lands. Boston, 1914.

IO )

INDEX

Ability, engineering, test of, 48.

Academic and Industrial Efficiency, 102.

Accredited schools, 48.

Accuracy in engineering, 106.

Achievement, tests of, 117 If.

Activities, extra-school, importance of, 53.

Administration of engineering schools, 27 ff.

Cooperative type, 30 f.

Faculty control, 29.

Military type, 28 f.
Admission requirements in engineering schools,

21f.,47.
Agricultural instruction, demand for, 4.
Agriculture in the United States, 4, 5.
Aims of early engineering schools, 9 ff.
Akron, University of, cooperative plan at, 58, 81.
Algebraic problems, tests in, 117.
American Academy of Engineers, 19.
American Institute of Electrical Engineers, 18.
American Institute of Mining Engineers, 18.
American Society of Civil Engineers, 18.
American Society of Mechanical Engineers, 18.
Amherst College, tuition at, 16.
Apprenticeship and professional training, 55.
Arithmetical problems, tests in, 117.
Army officers, grading of, 73.
Army Personnel Committee, 73.
Army, tests in the, 72.
Assistants in universities, 103.
Atkinson, Professor W. P., 38.
Aydelotte, Professor Frank, 63, 64, 93.

xJaltimore Polytechnic Institute, 7.

Banking in engineering schools, 63.

Bibliography, 127.

Bird, Professor R. M., 62.

Bliss Electrical School, 7.

Board of Visitors of United States Military
Academy, 28.

Boards of regents, 27.

Boards of trustees, 27.

Breese, Professor B. B., 52.

British manufactures and American produc-
tion, 3.

Brodhead, Charles, 4.

Brown University, new curriculum at, 93.
Tuition at. 16.

Buel, Jesse, 4, 5, 9.

Burton, Dean A. E., 32, 52.

(calculus, place of, 90.
California and federal land grant. 16.
Carnegie Foundation for the Advancement of
Teaching. 102, 106.

Carnegie Institute of Technology, 78.
Carnegie, Andrew, 78. [77 f.

Casino Night School, Centennial Exposition,
Census Reports and engineering, 18.
Certificate system and examination system com-
pared, 48 f.

Admission by, 47, 48.
Character and achievement, 146 f.

As quality in grading. 73.
Chemistry for engineering students, 39 f.
Cincinnati, University of

Administration in, 30 f.

Cooperative plan at, 58, 78 ff., 88.

Coordination at, 57.

Grading at, 33, 35, 73 f.

Graduates of, 79.

Reorganization of content at, 61 f.

Shopwork in, 78.

Testing of students in, 52, 123.
Civil engineer, degree of, 12.

Training of, 5.
Civil engineering, first mention of, 12.

Specialization in, 23 f., 54.
Civil engineers, statistics of, 18.
Clermont, the, 3.
Coefficients of correlation, 119f.
Cogswell Polytechnic Institute, San Francis-
co, 7.
College Entrance Examination Board, 47, 48.
Colleges and professional development of en-
gineering, 19.
Colleges, arts, engineering work in, 7.
Columbian Exposition, 101.
Columbia University

Engineering curricula in, 54.

Grading in, 33.

Testing of students in, 49 f., 119 ff.

Tuition in, 16.
Columbia University, School of Mines, 16.
Committee on Agriculture, report of, to New

York State Legislature, 4.
Committees on Instruction, 88 f.
Common sense in engineering, 106.
Completion tests, 118f.
Comprehensive Plan of Insurance and Annuities

for College Teachers, 102.
Congress and Administration of United States

Military Academy, 28.
Congress and industrial development, 3.
Contracts and specifications in engineering

schools. 63.
Cooperative plan, 58, 78 ff., 89, 110.

Advantages of, 80.

Cost of, 80.

Meaning of, 81.

134

INDEX

Cooperative System of Education, The, 30.
Cooperative type of administration, 30.
Coordination in engineering schools, 57, 9$.
Coordinators, 79.
Cornell University

Engineering courses in, 24, 54 f.

Student grades in, 33,
Correlations, coefficients of, 119 f.
Correlations in Thorndike tests, 119 f.
Cost of cooperative plan, 80.
Costs, practice in figuring, 63.

And values, 99.
Cotton gin invented, 3.
Council of National Defense, 107.
Courses, engineering, length of, 54 ff., 93 f.

Content of, 60 ff.
Credit hours in engineering courses, 54 f.
Culture in engineering schools, 56.
Curricula of engineering schools, 7f., 9ff., 21 ff.,
38ff.,60ff.

Commercial subjects in, 63.

Congestion of, 25, 57.

Construction of, 56, 65.

Control of, 29,55, 60 f.

Coordination in, 57.

Distribution of time in, 22 f., 24 ff., 54 ff.

Essentials of, 89.

Experiments in, 61 ff.

Length of, 54 ff.

Massachusetts Institute of Technology, 13,
22.

Methods of teaching, 37 ff.

Rensselaer Polytechnic Institute, 13, 57.

Reorganization of, 87 ff.
Methods of, 88 f.

Required credit hours and, 87.

Specialization of, 23, 25, 54, 55.

University of Illinois, 13, 24, 55.

.Dartmouth College, Thayer School, 16.
Dentistry, schools of, 56.
Dooley, C. R., 36, 71.
Drawing for engineering students, 42.
Duckering, \V. E.,59.
Duncan, Robert Kennedy, 82 f.
Dunwoodie Institute, Minneapolis, 7.
Duruy, Histoire des temps modemes, 38.

xLatov, Amos, 37, 101.
Ecole Centrale des Manufactures, 12.
Economic theory in engineering schools, 63.
Edgeworth, partial correlation coefficients of,

120.
Education, science of, 88.
Efficiency in engineering, 106.
Electrical engineers, statistics of, 18.
Elimination of students, 22 ff., 100.

Causes of, 33.

Determination of, 32.
Engineer, the professional, 106 ff.

Equipment of, 65.

Opportunity for, 107, 108.
Engineering ability, test of, 47.

Administration, courses in, 111.

Aim of, 90.

And apprenticeship, 55.

Census reports on, 18.

Colleges and, 19.

Common basis of, 89.

Curricula in, 7, 9 ff., 21 ff., 38 ff., 60 ff.

Education, aim of, 9ff., 108 ff.
Demand for, 4, 5.
Problems of 8, 47 ff.

Essentials of, 106.

Profession of, 18 f.

Qualities required in, 106.
Engineering Council, 107.
Engineering Foundation, 19, 107.
Engineering, professional ideals of, 8.
Engineering schools, administration of, 27 ff.

Aims of, 9 ff.

Chemistry in, 39 f.

Classification of, by U. S. Bureau of Educa-
tion, 56.

Commercial subjects in, 63.

Content of courses in, 60 ff.

Coordination in, 57.

Culture in, 56.

Curricula of, 7, 9 ff.

Descriptive geometry in, 42.

Development of, 3 ff. , 55 f.

Drawing in, 42.

English in, 38, 41.

Entrance requirements of, 12.

Equipment of, 7 f., 15 ff.

Examinations in, 41.

Experiments in, 61.

Faculty control in, 56.

Financial management of, 27.

Foreign languages in, 42.

Grading and testing in, 67 ff.

Graduates of, 6, 7.

Graduation thesis, 43.

History in, 38.

In large universities, 30.

Liberal arts in, 56.

Mathematics in, 39.

Methods in, 14.

Methods of instruction in, 37 ff.

Number of, 6.

Number visited, 26.

Orientation courses in, 58.

Problems of, 8.

Resources of, 7f., 15 ff.

INDEX

135

Shopwork in, 42, 76.

Students in, 6, 15 ff.

Teachers in,56f., 101 ff.

Tests of students in, 117ff.

Theory and practice in, 58.

Tuition in, 16.

Types of, 28 ff.
Engineering societies, 18.
Engineering, specialization in, 23, 25.
Engineering work in arts colleges, 7.
English, in entrance requirements, 22.

Methods of teaching, 38, 41 f.

Reorganization of, 63, 93, 99.

Tests of achievement in, 118 ff.
English literature and elimination of students,

33.
Entrance requirements in engineering schools.

See Admission requirements.
Equipment of engineering schools, 7 f., 15 ff.
Erie Canal, 4.
Evans, Oliver, inventor, 3.

Examination system and certificate system com-
pared, 48 f.

And tests, 17ff.

In engineering schools, 41 f.
Extra-school activities, importance of, 53.

1* aculty control in engineering schools, 29, 56.
Federal Aid/or Vocational Education, 9.
Federal land grant, acceptance of, 16.
Federal Trade Commission, 108.
Fellenberg School, Hofwyl, Switzerland, 4, 9,

37.
Fernald, Professor R. H., 62 f.
Fernald, R. H., and Orrok, G. A., Engineering

of Power Plants, 63.
Financial management of engineering schools,

27.
Florida, University of, engineering courses in,

24, 60.
Flour mills, machinery for, made, 3.
Foreign languages for engineering students, 42,

90, 94.
Foremen, qualities of, 36.
Franklin Union, Boston, 7.
French in engineering schools, 90, 94.
French technical schools. 12, 14.
Freshman year in engineering, 25, 38.

Grades in, 35.

Practical engineering in, 88, 91.
Fulton, Robert, 3.

Geddes, James, 4.

General Electric Company, 36.

General studies in engineering curricula, 22 f.

Geometrical drawing for engineering students,

42.
Geometrical proof, test in, 117.

Geometry, descriptive, for engineering students,

42.
George Washington University, entrance re-
quirements, 22.
German and elimination of students, 33, 90.
Germany, graduating engineers in, 7.
Goettsch, Professor H. M., 61 f.
Grades, low, meaning of, 34.

And employment, 36.

And specialization, 97.

Distribution of, 68.

Number and percentage of, 35.

Qualities selected for, 73 f.

Student, 33 ff., 67 ff., 117 ff.

Vocational guidance and, 72. [19.

Graduates of engineering schools, 6, 7, 16, 17,

Employment of, 20.
Graduation, average age of, 33.
Graph test, 117.

Greene, Professor B. Franklin, 12, 26.
Guizot, History of Civilization, 35, 38.

XjLarvard University

Engineering curricula at, 54.
Tuition in, 17.

High school inspectors, 48.

History in entrance requirements, 22.

History of engineering schools, 3 ff.

History of the Rensselaer Polytechnic Insti-
tute, 9.

Hobson, Professor J. A., Work and Wealth, a
Human Valuation, 99.

Houston, John F., 18.

Human factors in engineering, 109 f.

Humanities in engineering schools, 89, 90, 92 f.,
99.

Illinois and federal land grant, 16.
Illinois Industrial League, 9.
Illinois Industrial University, 10.

Tuition at, 16.
Illinois, University of, 9.

Curricula of, 13, 24, 55.

Elimination in, 32.

Entrance requirements, 21 f.

Graduates of, 16, 17.

Resources of, 16, 17.

Shopwork in, 76 f., 78.

Student grades in, 33, 34.

System of instruction in, 14.
Inbreeding in college faculties, 103.
Individuality in professions, 106.
Industrial companies and research, 82 f.
Industrial universities, 5.

Industry in the United States, development of,
3, 4f.,18, 19.

Engineering schools and, 8, 9 ff., 14, 78 ff, 89,
90,91, 98, 108 f.

136

INDEX

Foreign artisans and, 3.

Patriotism and, 3.

Scientific information and, 4, 10, 20.

State treasuries and, 3.

War of 1812 and, 3.

War of Independence and, 3.
Initiative in engineering, 106.
Instruction, methods of, in engineering schools,

37 ff.
Integrity in engineering, 106.
Intelligence as quality in grading, 73.
International Commission on the Teaching of

Mathematics, 39.
Interrelation, 112.
Iowa and federal land grant, 16.

James, E. J., Origin of the Land Grant Act of

1862, 9, 10.
Johns Hopkins University, engineering school
in, administration of, 29.

Engineering courses in, 24.
Judgment in engineering, 106 f.
Junior year in engineering, 25.

Grades in, 35.

IVaxdel, Dr. I. L., on Federal Aid for Voca-
tional Education, 9.

Kansas, University of, and industrial research,
82 f.

Katte, E. B„ 70.

Kelley, Dr. Truman L., 51, 120.

Kentucky, University of, grading of students
at, 73.

Keppel, DeanF. P.,49, 70.

Knowledge in engineering, 106 f.

Laboratory problems, tests in, 118 f.
Laboratory work in engineering education, 8,

91,98.
Lafayette College, cooperative plan at, 58.
Land Grant Colleges, movement for, 9.
Latrobe, Benjamin, 18.
Law and apprenticeship, 55.
Lawrence, Abbott, 14.

Lawrence Scientific School, Harvard Univer-
sity, 5.

Graduates of, 15.
Leadership, as quality in grading, 73.
Liberal arts in engineering schools, 56.
Liberal training and science, 5.
Lowell Institute, 7.

Maine and federal land grant, 16.
Manufactures and engineering. See Industry in

the United States.
March and Wolff, Calculus, 61.
Market conditions in shopwork, 77.
Marks, 67 ff., 117 ff.

Massachusetts Institute of Technology

Administration in, 111.

Administration of, 27.

Aims of, 10, 11.

Cooperation plan in, 31, 81.

Curricula of, 7, 13, 22, 24.

Elimination in, 32.

English in, 63, 93, 99.

Entrance requirements, 21 f.

Grant from state to, 16.

Methods of instruction in, 37 f.

Resources of, 16, 17, 27.

Shopwork in, 77 f.

Specialization in, 96.

Student grades in, 33, 34.

Students of, 17, 27.

System of instruction in, 14.

Testing of students at, 52, 119 f.
Massachusetts state legislature, 16.
Matching diagrams, tests in, 118. [39.

Mathematics for engineering students, aims of,

In entrance requirements, 50.

Methods of teaching, 39.

Reorganization of, 61.

Tests of achievement in, 117 ff.
Mechanic arts in engineering schools, 89, 90, 91 f.

Demand for training in, 5.
Mechanical engineering, specialization, 24.

Courses in, 22 f.
Mechanical engineers, statistics of, 18.

Training of, 5.
Mellon Institute, 82.
Medicine and apprenticeship, 55.

Schools of, 56.
Meyer, Professor Max, 67.
Michigan and federal land grant, 16.
Michigan College of Mines, engineering courses

in, 24.
Michigan, University of, 5.

Engineering school at, 14.
Middlesex Canal, 3.
Military drill in land grant colleges, 29.
Military type of administration, 28.
Mining engineers, statistics of, 18.
Minnesota, University of, engineering curricula

at, 54.
Missouri, University of, grading at, 67.
More, Professor C. C, 58 f., 62.
Morrill Act, 5, 6, 15.
Motivation, 112.

Na-hoxal Academy of Science, 19.

National Association of Corporation Schools,

105.
National Engineering Societies, 106, 107.
National Research Council, 19, 107.
Naval Consulting Board, 107.
New Hampshire and federal land grant, 16.

INDEX

137

New Jersey and federal land grant, 16.

New York and federal land grant, 16.

Norsworthy, Professor L. D. , 70.

North Carolina College of Agriculture and Me-
chanic Arts, entrance requirements, 22.

North Central Association of Colleges and Sec-
ondary Schools, 48.

Northwestern University, engineering courses
in, 24.

Norton, Professor W. A., 14. [22.

Notre Dame University, entrance requirements,

O EJECTS and Plan of an Institute of Technol-
ogy, 9, 11.

Officers, army, grading of, 73.

Ohio State University

Engineering curricula in, 54 f.
Student grades in, 33.

Orientation courses, 58, 88.

Origin of the Land Grant Act o/1862, 9.

Paragraph reading, tests in, 118.

Park, Professor C. W., The Cooperative System

of Education, 30, 81.
Patriotism and industrial development, 3.
Pawtucket, textile mill at, 3.
Pearson coefficients, 120.
Pennsylvania and federal land grant, 16.
Pennsylvania State College

Elimination in, 32.

Engineering courses in, 111.

Shopwork in, 76.

Specialization in, 96.

Student grades in, 34, 73.
Pennsylvania, University of

Administration of, 29.

Student grades in, 33.

Tuition in, 16.
Personal service in the United States, 5.
Pestalozzi, 9.
Pharmacy, schools of, 56.
Phi Beta Kappa, 68.

Philadelphia water works, equipment of, 3.
Physics for engineering students, 40 f.

Tests of achievement in, 118 f.
Physique as quality in grading, 73.
Pickering, Professor E. C, 27, 37, 40.
Pittsburgh, University of, cooperative plan in,

31,81.
Practical engineering for freshmen, 88.
Practice and theory in engineering schools, 58,

88, 91, 98 f.
Pratt Institute, 7.
Problems described, tests in. 118.
Production and Science. See Industry in the

United States.
Production, elements of, 91. 109 f.
Professional engineer, definition of, 106 ff., 113.
Professional schools of law and medicine, 55, 56.

Professional service in the United States, 5.

Professional work in engineering schools, 24, 43.

Profession of engineering and education, 112.

Progress of students, 32 ff., 41 f.

Projects, use of, 62, 91 f.

Psychology, experimental, 88.

Purdue University, student grades in, 33, 73.

(Qualities of foremen, 36.

Qualities required in engineering, 106.

ixEcoRDERs' offices, reorganization of, 87.

Regents, boards of, 27.

Regents' examinations, 119ff.

Rensselaer Polytechnic Institute, 4, 5, 9, 101.

Administration of, 27.

Aims and methods of, 1 1 ff.

Curricula of, 11 ff., 24, 25, 58, 60.

Equipment of, 14.

Graduates of, 15, 17.

Methods of instruction in, 37.

Resources of, 14.

Shopwork in, 75.

Student grades in, 33.

Students of, 17.

System of instruction in, 14.
Rensselaer, Stephen van, 4, 9, 101.
Reorganization of engineering curricula. 88.
Research in engineering schools, 43, 103 f., 112.
Research laboratories in industrial plants, 82.
Resourcefulness in engineering, 106.
Resources of engineering schools, 7 f., 9ff., 15 ff.
Ricketts, P. C, History of the Rensselaer Poly-
technic Institute, 9.
Roe, Professor J. W., 70.
Rogers, President W. B., 9, 10, 11, 37, 101.
Rohrer, A. L.,36.
Rooseveldt, Nicholas I., Philadelphia Water

Works, 3.
Root, R. E., 59.

Rose Polytechnic Institute, shopwork in, 76.
Royal Institution, Great Britain, 9.
Rumford, Count, 9.
Runkle, President, 77 f.
Russian shopwork, 77 f.

oantee Canal, 3.

Scales of measurement, 59, 117 ff.

Schneider, Dean Herman, 52, 78, 81, 82.

Schuylkill-Susquehanna Canal, 3.

Science and production. See Industry in the
United States.
And Liberal training, 5.

Science subjects in engineering curricula, 23, 89,
90, 92.

Scientific information, demand for, in indus-
tries. 4.

Scientific study of education, 105.

138

INDEX

Scott, Professor W. D., 73.
Senior year in engineering, 25.

Grades in, 35.
Sentences, completion of, tests in, 118.
Sheffield, Joseph E., 14.

Sheffield Scientific School. See Yale University.
Shop work, 42, 75ff.,90.

And theory, 82.
Sigma Xi, 68.
Silliman, Benjamin, 14, 37.
Six-year courses, 54 f.
Slater, Samuel, and industrial development in

America, 3.
Slichter, Elementary Mathematical Analysis, 61.
Smith, R. H., 78.
Society for Increasing the Comforts of the

Poor, 9.
Society for the Improvement of Agriculture,

Arts, Manufactures, and Commerce, 3.
Society for the Promotion of Engineering Edu-
cation, Committee on Entrance Requirements

of, 47, 92, 101.
"Soldiering," 69.
Sophomore year in engineering, 25, 38.

Grades in, 35.
Specialization in engineering, 23, 25, 54, 55, 95 ff.
State institutions, administration of, 27.
State treasuries and industrial development, 3.
Steam engine, high pressure, invented, 3.
Stenquist construction test, 119.
Stevens Institute

Cooperative administration in, 30.

Specialization in, 96.
Students, elimination of, 6, 32 ff.

Grades of, 33, 73.

In engineering schools, 6, 17.

Progress of, 32 ff.

Tests of, 117 ff.

1 act in engineering, 106.

Tau Beta Pi, 68.

Teachers in engineering schools, 56, 101 ff.

And research, 103 f.

Practical experience of, 102, 103.

Qualifications of, 101 f.

Salaries and tenure, 102.
Technical subjects in engineering curricula, 23.
Technique in engineering, 106 f.
Technological schools, classification of, 55 f.
Tennessee and federal land grant, 16.
Tests, and examinations, 70.

And secondary education, 4 f .

And teaching, 70.

Effect of outside work on, 52 f.

In English, 118 ff.

In mathematical achievement, 117 ff.

In physics, 118 ff.

In the army, 72.

Nature of, 49 ff.

Results of, 119 ff.

Validity of, 50.

Value and purpose of, 49, 57, 59, 67 ff., 117 ff.
Thayer School, Dartmouth College, 16.
Theology, Schools of, 56.
Theory and practice in engineering schools, 58,

88, 91,98 f.
Thesis, graduation, 43.
Thompson, President C. O., 76.
Thorndike, Professor E. L., 36, 49, 52, 53, 70,

89, 117 ff.

Thoroughness in engineering, 106.

Time schedule in engineering schools, 22 ff.,

54ff.,60, 93.
Trade in the United States. See Industry in the

United States.
Transportation in the United States, 5.
Trustees, boards of, 27.
Tufts College, student grades in, 33.
Tuition, about 1870, 16.
Turner, Professor J. B., on industrial training,

10.

U nderstanding of men in engineering, 106.

United Engineering Societies, 107.

United States Bureau of Education and Engi-
neering Schools, 8, 55 f.

United States, educational expenditures in, 17.

United States, industrial conditions in. See In-
dustry in the United States.

United States Military Academy
Administration of, 28 f.
French at, 94.
Grading at, 68.

United States Naval Academy, 57.

Universities, Colleges, and Technological
Schools, classification of, by United States
Bureau of Education, 8.

Values and costs, 99, 110, 111, 112.
Verbal relations, tests in, 118.
Vermont and federal land grant, 16.
Veterinary medicine, schools of, 5G.
Virginia Polytechnic Institute

Engineering courses in, 24.

Student grades in, 33.
Virginia, University of

Reorganization of content at, 62.

Student grades in, 33.
Vocabulary range, tests in, 118.
Vocational guidance and grading, 72 f.

War Department and administration of United
States, grading of officers by, 73.
Military Academy, 28.

War of Independence and industrial develop-
ment, 3.

Washburn, Hon. Ichabod, 75.

INDEX

139

Washington, University of
Coordination at, 58 f.
Mechanics' courses in, 88.
New curricula in, 93.

Wellington, A. M., on essentials in engineer-
ing, 107.

Wentworth Institute, 7, 52.

Westinghouse Electric and Manufacturing Com-
pany, 36, 71.

West Point. See United States Military Acad-
emy.

White, Benjamin, 18.

Whitney, Eli, inventor, 3.

Williston, Director A. L., 52.

Wisconsin and federal land grant, 16.

Wisconsin, University of
Elimination in, 32.
Engineering curricula in, 54 f.

English in, 64, 99.

Student grades in, 33, 34.
Woods and Bailey, Course in Mathematics, 61.
Worcester Polytechnic Institute, shopwork in,

75, 76.
Wright, Benjamin, 4.

Yale University
Cooperative administration in, 30.
Engineering curricula in, 54 f.
Entrance requirements to, 22.
Shopwork in, 75.
Student grades in, 33.

Yerkes, Major, 72.

Young Men's Christian Association, engineer-
ing work of, 7.

Young, Professor Karl, 63.

Yule, partial correlation coefficients of, 120.

THE CARNEGIE FOUNDATION
FOR THE ADVANCEMENT OF TEACHING

PENSIONS FOR
PUBLIC SCHOOL TEACHERS

A REPORT FOR THE COMMITTEE ON SALARIES, PENSIONS
AND TENURE, OF THE NATIONAL EDUCATION ASSOCIATION

BY
CLYDE FURST and I. L. KANDEL

BULLETIN NUMBER TWELVE

I- ^

N> . t

NEW YORK CITY

576 FIFTH AVENUE

D. B. UPDIKE • THE MERRYMOUXT PRESS • BOSTON*

CONTENTS

PAGK

PREFACE v

By Joseph Swain, Chairman of the Committee on Salaries, Pensions, and
Tenure of the National Education Association

THE SOCIAL PHILOSOPHY OF PENSIONS

The History of Pensions 3

The Need for Pension Systems 3

Non-contributory Pensions 4

Contributory Pensions 6

Voluntary or Compulsory Systems 7

Pension Financing 8

Accrued Liabilities 8

The Cost of Pensions 9

Age of Retirement 11

Pension Benefits 12

Reports and Valuations 13

THE FUNDAMENTAL PRINCIPLES OF PENSIONS 15

THE PRESENT STATUS OF TEACHERS PENSIONS

European Systems 17

Systems in the United States 18

Lack of Scientific Basis 19

Administration 20

Amount of Pensions 20

Service and Age Retirement 20

Disability Allowances 21

Financing 22

Financial Unsoundness 24

The Report of the New York City Commission 24

The Report of the Illinois Commission 26

The Massachusetts Plan 27

The Pennsylvania Plan 29

iv CONTENTS

A SUGGESTED SYSTEM OF RETIRING ALLOWANCES FOR TEACHERS IN

THE PUBLIC SCHOOLS OF THE STATE OF VERMONT

The Suggested System 31

Statistical Basis 37

Theory and Principles 48

TABULAR STATEMENT OF TEACHERS PENSION SYSTEMS 56

SUMMARY OF TEACHERS PENSION SYSTEMS 70

MAP OF TEACHERS PENSION SYSTEMS 73

BRIEF BIBLIOGRAPHY 75

INDEX 79

PREFACE

The National Education Association's Committee on Salaries, Tenure,
and Pensions, appointed in 1911, has published, independently or in
cooperation with the United States Bureau of Education, reports on
"Teachers' Salaries and Cost of Living" (January, 1913), "The Tangible
Rewards of Teaching" (Bulletin 16, U. S. Bureau of Education, 1914),
"Salaries of Teachers and School Officers " (Bulletin 31, U. S. Bureau
of Education, 1915), and "State Pension Systems for Public School
Teachers" (Bulletin 14, U. S. Bureau of Education, 1916).

The Committee has also enlisted the cooperation of the Carnegie
Foundation for the Advancement of Teaching which, in addition to its
granting of pensions to university and college professors, has conducted,
for a dozen years, comprehensive studies of pensions for teachers,
wherever such systems exist. The President of the Foundation, Dr.
Henry S. Pritchett, placed at the disposal of the Committee all of this
material, together with the services of the Secretary of the Foundation,
Dr. Clyde Furst, and his colleague, Dr. I. L. Kandel.

These gentlemen have met in extensive conference with the Com-
mittee and invited representatives from each state at the meetings of
the National Education Association and its Department of Superin-
tendence, at Detroit and New York in 1916, and Atlantic City and
Pittsburgh in 1918. The reports which they prepared for these meet-
ings, the meeting at Kansas City in 1917, and the meeting of the Na-
tional Council of Education at New York in 1916, have been printed
in the Tenth, Eleventh, and Twelfth Annual Reports of the Carnegie
Foundation, which have been sent, without charge, to all teachers who
requested them. Addresses on pensions, delivered by Commissioner

vi PREFACE

Claxton, Dr. Furst, and the chairman of the Committee, before the
Association as a whole, at New York in 1916, are printed in the Pro-
ceedings of that meeting.

All of the material thus provided by the Foundation is brought
together, completed, condensed, and rearranged in the present Bulletin,
which the Foundation will send, without charge, to any teacher or school
officer who requests it. The Committee desires to record its appreci-
ation of the sympathetic and complete cooperation of the Carnegie
Foundation, which has thus rendered a service to every teacher in the
country.

There are many reasons for teachers pensions. Economically, the work
of an organization is not effective unless there is a satisfactory method
of retiring aged or infirm workers, with the consequent freedom from
anxiety concerning such risks on the part of the workers. Only a sat-
isfactory pension system can prevent either the dismissal of aged or
infirm teachers without resources, or the sacrifice of the best interests of
the schools in order to continue the employment of teachers who are no
longer capable. Socially, men and women of character and intelligence
are willing to undertake difficult public service that is poorly paid ; but
it is too much to expect them also to sacrifice the prospect of security
and dignity in old age and disability. Educationally, there is great need
to attract and retain and advance able people in teaching as a perma-
nent career. A good pension system helps to do this.

These facts were first apprehended in the United States a quarter
of a century ago. Eight systems of pensions for teachers were founded
before 1900, twenty -three in the next decade, and thirty-six since the
beginning of 1910. There are now sixty-seven different systems in thirty-
four states. The experience of this brief period has been fruitful, so that
we are already able to correct errors and proceed with more confidence.

PREFACE vii

The time should soon come when every state will have made such pro-
vision for its teachers.

The organization of the teachers pension systems now in existence is
generally satisfactory, there being ordinarily a small special board upon
which the teachers and the public are about equally represented. More
attention, however, is demanded by the need of having the actual
administration under expert direction with the supervision of the state's
banking and insurance commissioners.

The greatest difficulty that has been encountered has been the pro-
vision of adequate funds. The cost of a pension system for teachers may
be borne by the teacher alone, by the public alone, or by the teacher and
the public together. If the cost is borne by the teacher alone, he cannot
afford, out of a small salary, to set aside enough money to purchase
adequate protection, and the public fails to fulfil its obligation. If the
cost is borne by the public alone, the pensions are really considered as
part of the teacher's compensation, and the majority who withdraw or
die before retirement receive no return for their reduced pay. On the
other hand, when the cost is borne by the teachers and the public to-
gether, the teacher receives appropriate compensation and contractual
security and the teacher and the public cooperate in an economic, social,
and educational obligation. This principle of cooperation between the
teacher and the public is recognized by most of the pension systems
that are now in operation.

The application of the principle of cooperation, however, is not so
satisfactory. Only a few dozen systems relate the amount of the contri-
bution to the prospective cost of the pensions. Frequently public money
is expected from sources like excise, inheritance, license, or transfer
receipts; or deductions, fines, or forfeitures from teachers salaries for
absence or illness ; or from tuitions of non-resident students, which can-

viii PREFACE

not be accurately estimated in advance and so cannot furnish a reliable
basis for pension payments. Equally unsatisfactory is the expectation
of paying pensions, when they fall due, from current school or other
funds, without any assurance that these funds will be adequate ; or from
special or general appropriations, without any certainty that such appro-
priations will be made by future and perhaps unsympathetic adminis-
trations. Indeed, it is not uncommon to limit in advance the sums that
may be taken from such sources, thus reducing the proportion of the
pension that can be paid, or leaving the whole question of payment
largely to accident.

The only way in which absolute security can be obtained is for the con-
tribution of the public as well as that of the teacher to be paid annually,
credited to the individual teacher, and set aside to accumulate until
the time of his retirement. This also is the only economical method.
Any system that agrees to pay a pension from current funds after the
teacher retires, plans to spend two or three times as much money as
would be required if sums were set aside each year to accumulate it
during the teacher's period of service. Any other method is parallel to
issuing bonds without provision for retiring them.

Pension systems are still too generally organized without estimating
their cost. The probable length of life of a teacher in service or after
retirement may be estimated from the tables of mortality that have
been developed by the life insurance companies, with adjustment for
the fact that teachers live longer than other people. Some basis is be-
coming available for estimates of the likelihood of disability and the
probable length of life after retirement because of disability. It is wise
to avoid so far as possible basing pensions upon salaries at or near the
age of retirement, since no one can predict what any teacher's salary
will be thirty, or forty, or fifty years hence.

PREFACE ix

There is, of course, a definite relation between the benefits and the
cost Of pensions. No one can secure expensive benefits in return for very
small contributions. Only failure awaits the systems which promise re-
tirement after twenty years of service or at the age of fifty ; or in which
teachers contribute only one-half of one per cent of their salaries; or in
which the public contributes only one-half as much as the teachers.

Such errors may easily be corrected by a very simple pension system,
based upon conservative tables of mortality, and upon a safe rate of
interest, with the provision that the teacher receives the benefit of the
accumulation of all of his contributions and those made for him. It is
possible to estimate with reasonable definiteness what certain desired
benefits will cost, or what benefits can be had for the money available.
It is easy to estimate what any annual contribution, beginning at any
age, and accumulating at a given percentage, will amount to after any
number of years. If then the money is deposited in a central fund, each
contributor can be guaranteed a definite annuity for life, since the lives
of all are averaged in the standard mortality tables. Thus, an annual con-
tribution of $100 a year, beginning at the age of 25, and accumulated at
4 per cent interest, will amount at 65 to $8882.65, at 70 to $12,587.06.
These sums will provide a man with an annuity for life, according to the
McClintock Table of Mortality and 3 \ per cent interest, of $1086 a year
beginning at 65, or of $1681 a year beginning at 70. If, on the other
hand, a man wishes to be sure of a life annuity of $1000 a year at 65 or
70, he knows that this will cost $9098.60 or $8642.40 at those ages,
and that it would require a contribution of $92 or of $68 a year from
the age of 25 to accumulate these sums. The annuities from such a con-
tribution for women, who live longer than men, would be about four-
fifths of the sums that have been mentioned.

These figures imply a return of the accumulations of the teacher who

x PREFACE

dies before retirement and of those who withdraw from the system for
any reason. If it is desired for the sake of family protection, there may
be also a return of the balance of the accumulations of the teacher who
retires but dies before he has drawn all of his accumulations. This also
can be calculated from standard mortality and interest tables. These
cost about one-fourth more than a straight annuity. If further protec-
tion is desired against disability, this can be similarly provided by the
use of the best tables that we have, with the proviso that the rates for
those who enter into the system in the future may be modified accord-
ing to future experience.

A pension system of the kind that has been mentioned is just and
fair to all concerned, giving the teacher secure and adequate protection
at a reasonable cost to himself and to the public.

Such a system provides for retirement on the basis of age or of dis-
ability after any suitable period of service. The age of retirement, which
is now usually fixed, can, if desired, be left to the teacher and the ad-
ministration. If the need is great, retirement may be earlier, in spite of
the fact that the smaller accumulations would then make the pension
smaller. In general, retirement will, in all probability, be later than at
present, because of the larger pension provided by the longer accumu-
lation, and the educational desirability of keeping the able teacher
in service as long as possible. Disability can be provided for by using
whatever money has been accumulated at the time when retirement
becomes unavoidable, perhaps with some supplement from the state
until statistical experience makes it possible to provide specifically for
disability.

The system suggested provides full protection for both the teacher
and those who are dependent upon him, since the form of contribution
sets up a contractual relation which provides definite returns in case of

PREFACE

withdrawal or death. Return of contribution in case of resignation is
now sometimes arranged, but return in case of dismissal or of death is
seldom provided for. Contractual arrangements for the return of con-
tributions under all these circumstances will facilitate the desirable
transfer of the teacher from one system to another. Indeed, with the
spread of sound plans, pension systems throughout the country will
become more and more uniform, so that the experience of each will
help all. Continuity of employment during efficiency and good behavior
is essential to any sound pension system.

Joseph Swain, Chairman

President of Swarthmore College

Ernest C. Moore

President Los Angeles State Normal School

David B. Johnson

President Winthrop Normal and Industrial College of South Carolina

Harlan Updegraff

Professor of Educational Administration, University of Pennsylvania

Grace C. Forsythe

District Superintendent of Schools, Brooklyn

James Ferguson

Deputy Superintendent, Riverside County, California, Schools

Francis G. Blair

State Superintendent of Public Instruction, Illinois

John W. Carr

Principal, Friends Central School, Philadelphia

National Education Association Committee
on Salaries, Pensions, and Tenure.

*>}

PENSIONS FOR PUBLIC SCHOOL TEACHERS

THE SOCIAL PHILOSOPHY OF PENSIONS

The History of Pensions

Teachers pension systems are part of a recent world movement for social insurance.
Pensions of some kind have been in existence since the Roman era, but until recently
they have been granted in a merely haphazard fashion, and have not been regarded
as a responsibility to be assumed by society toward its superannuated or disabled ser-
vants. They were granted first as rewards to court favorites, or for military or naval
services, or for distinguished contributions in the fields of literature, art, or science.
As the administrative departments of government developed, employing large num-
bers of civil servants with a certain security of tenure, they also introduced pensions,
partly as a compensation for low salaries paid during active service, partly as a means
of attracting desirable workers to the service. This practice spread to other branches
and types of public service under local government authorities.

So long as the occupations of industry and commerce were on a small scale, where
the employer had only a few employees with whom he could maintain personal rela-
tions, cases of superannuation or disability could be taken care of either by the em-
ployer or by fellow workers. But with the development of industry on a large scale,
whereby hundreds or thousands of employees were congregated in large factories, the
conditions under which the employer could exercise a personal interest in the welfare
of his employees disappeared, and at the same time the direct appeal to fellow work-
ers in cases of distress lost its intimate force. Out of these circumstances and the so-
cial consciousness which began late in the nineteenth century to replace the previous
individualistic laissez-faire policy, there developed a feeling of social responsibility
for those who became incapacitated thru age or disability for further wage-earning.
Society has come to demand that an employee who has given the services of a life-
time to an employer be provided for in his old age. Social justice demands that this
protection be more definite and dignified than that of common charity.

The Need for Pension Systems

Such considerations alone, however, while they direct attention to the need of some
system of pensions, approach the subject only from the point of view of the retiring
employee. They base the claim to a pension on gratitude for past services or on social
justice. They accept the claim of employees that they have a moral and equitable
right to pensions, over and above the remuneration that they have received during
active service. An even broader social philosophy requires that the justification for
pensions should rest not only on their service in cases of distress, but also on the ex-
tent to which they may improve the conditions of service, increase the efficiency of
workers, and promote social welfare generally. Any service, whether public or private,
is likely to become impaired as a result of the waste and demoralization caused by

4 PENSIONS FOR PUBLIC SCHOOL TEACHERS

the retention of employees who are inefficient because of old age or disability. The
retention in service of worn-out employees further tends to clog the avenues of pro-
motion and to discourage younger and abler men. At the same time the absence of
provision against the hazards of life creates uncertainty as to the future, perplexity,
and worry on the part of the employee, throughout his service.

The justification of a pension system accordingly arises from the interests of both
the employer and the employee, the demands of economic efficiency as well as of social
justice. The employee who knows that he will be provided for when the time comes
for him to retire from his occupation is likely to be contented and free from worry,
and will render more effective and more continuous service. A calling or profession
will attract and hold men of intelligence, ability, and devotion, only so far as they
recognize that the avenue of promotion is open to them and that security is afforded
against the risks of life. From these points of view the establishment of a pension
system ceases to be merely a matter of sentiment, or a reward for past services, or
a compensation for low salaries. It becomes a matter in which the employee, the em-
ployer, and society at large are vitally interested. It is because pensions have been
approached hitherto without taking into consideration all these factors that a sound
theory of the subject has not been developed, and without a sound theory sound
practice is impossible.

Non-Contributory Pensions

It is only by defining clearly the interests to be served by a pension system that
it is possible to proceed to a consideration of the methods by which such a system is
to be maintained and managed. Where pensions have been regarded from the point
of view of sentiment or moral right or compensation due for past services, the burden
of their maintenance and management has been placed wholly upon the employer.
Some confusion also has been caused by the attempt to transplant to conditions prev-
alent in a democracy institutions that arose in continental Europe under a regime
of government supervision and paternalism. But even in Europe recent progress in
social insurance is based on the mutual cooperation of governments, employers, and
employees. Another tradition that has been detrimental to the development of sound
pension theory has been the paternalistic and political practice of the United States
government in pensioning its army and navy veterans. But here too, at last, the prin-
ciple of cooperation has been adopted — in the Federal War Risk Insurance Act of
1917. The advocates of free, straight, or non-contributory pensions, paid by the em-
ployer alone, have failed to realize the limitations of such pensions. A free pension not
only fails to satisfy the requirements of social philosophy described above, but it is
open to many other objections. A system of free pensions, if they are to be adequate
for subsistence, can be supported only out of resources that are unlimited. The cost,
which depends upon the judgment or generosity of the employer, cannot be calculated

THE SOCIAL PHILOSOPHY OF PENSIONS 5

in advance, and while it may be small at first, it rises rapidly within a short period.
The appropriations for pensions for war veterans in the United States have reached
the sum of more than $185,000,000 annually. The private employer does not as a
rule possess the means to meet the demands of such a pension system unless the indi-
vidual pensions are pitiably small, or unless the right is reserved to prorate the pen-
sions when the burden becomes too great. Such a provision inevitably introduces an
element of uncertainty and a lack of confidence in the system on the part of employ-
ees, while the employer under this scheme is accumulating a debt without laying aside
a reserve to meet the obligation when it falls due. A free pension plan under the con-
trol of the employer accordingly furnishes a merely speculative benefit in the remote
future, fails to affect the attitude of the employee to his work, and does not produce
the continuity of service and the contentment that are among the essential objects of
a sound pension scheme. A free pension plan, for example, has never yet prevented
strikes, as some employers hoped that it would. The financing of a scheme on this
basis necessarily places its control and management in the hands of the employer, a
practice that does not avail itself of the advantages of the cooperation and mutual
understanding that may be expected from another type of administration. Nor does
a free pension system ever secure the moral and educative values of a system that
encourages cheerful performance of service, efficiency, thrift, and foresight.

From the point of view of the employees, the free pension plan, altho it has always
had a strong appeal as being " something for nothing,"" is misleading, for it is too
often forgotten that any prospective benefit over and above wages is inevitably con-
sidered as compensation in lieu of wages. In other words, a free pension system is
inevitably contributory, altho in an indirect way. The English civil servants, more-
over, argued that the free pension promised them not only kept their salaries low,
but that their salaries were reduced by an amount that would have more than paid
for the pensions.1 At the same time, altho a free pension is technically maintained by
"constructive contributions," or the amounts by which wages are depressed, the em-
ployees have no withdrawal equities if they resign or die before becoming eligible for
retirement. Finally, such a plan is contrary to the interests of employees because it
confers no contractual right to the pension; it merely holds out a promise of a benefit
if there are funds to meet the cost. There is in fact no free pension.

Briefly stated, then, the free pension plan fails to carry out the purposes of a sound
pension theory. From the standpoint of the employer it is likely to prove exceedingly
costly and does not promote the efficiency and well-being of employees, while to the
employees it offers an uncertain and contingent benefit for which they are themselves
indirectly paying more than it costs.

* See Report of the Royal Commission on Superannuation in the Civil Service. London, 1908.

6 PENSIONS FOR PUBLIC SCHOOL TEACHERS

Contributory Pensions

Since so-called free pensions fail to achieve the proper objects of a pension system,
some plan is necessary which distributes the burden of the cost equitably, provides
for cooperation between employer and employees, can be administered justly, economi-
cally, and with due regard to scientific actuarial principles, establishes contractual
security for the employees, includes elements of elasticity so that benefits and pro-
tection against other risks besides those of old age can be furnished, and, in addi-
tion, has moral and educative values. Such a scheme is found in the contributory plan,
which involves the joint contributions and the joint administration of employer and
employee.

For the employer the contributory plan is considerably cheaper than the free pen-
sion system because it replaces an uncertain but continuing and increasing burden
by a fixed and limited liability. This is particularly true if the reserve system of meet-
ing the cost is adopted, and a definite sum for pension purposes is set aside annually
as a part of the current expense of production, instead of being postponed as a charge
upon a future generation which receives no benefit in return. A sound contributory
plan, like any other, assumes that the employer owes a humane duty to his worn-out
employees, but unlike any other plan it does not depend on his discretion whether he
will meet this obligation or not. The employer's contribution becomes a consideration
in return for which the employees permit deductions from their salaries. Such a system
can be placed on a contractual basis and be more effective than any other system of
pensions in securing a readier performance of duty and a higher efficiency among
employees, and in attracting and holding men of energy and ability. A pension sys-
tem based on the contributory plan is not an extravagance for the employer but an
economical expenditure, dictated not by feudal or sentimental purposes but by the
desire to improve the conditions that determine efficient service as well as by a broad
humanity. For the employee the establishment of a pension plan on the contribu-
tory principle, while intended primarily as a protection against the risk of unemploy-
ment as the result of superannuation or disability, furnishes, further, an opportunity
for saving and the development of habits of thrift. Far from affecting the independence
of employees adversely, as is sometimes feared, the contributory plan strengthens it
by giving the employees a sense of financial security to the extent of the accumula-
tions, however small, standing to their credit. The fact that a contributory plan is
based on the financial cooperation of employer and employees implies cooperation in
administration and furnishes a starting-point for that broader mutual understand-
ing that is becoming increasingly essential and increasingly common in industrial
relations.

THE SOCIAL PHILOSOPHY OF PENSIONS 7

Voluntary or Compulsory Systems

The contributory plan not only promotes cooperation between employer and
employees, but takes cognizance of the fact that modern industrial and professional
organization brings men together in groups working under uniform conditions. The
latter fact alone furnishes a basis on which employees may unite for protection against
the chief hazards of life and for the promotion of other common interests. Since it is
the function of a pension system not only to obviate the hardships and distress that
may come with the cessation of income, but also to secure efficiency, it is obvious that
an effectual contributory plan must also be compulsory. A voluntary system may fail
to provide protection for those who need it most ; a discriminating or selective feature
may fail to promote that efficiency and whole-hearted cooperation at which the system
aims. The success of a pension plan, moreover, depends upon the participation of mem-
bers in such numbers that the ordinary tables of mortality may be employed until
special tables, representing the experience of the system, be worked out. Such repre-
sentative tables cannot anticipate the experience of a small number of voluntary par-
ticipants. Nor does such a compulsory plan militate against the development of thrift
and foresight. Thrift is a habit, a mental attitude, that grows with the opportunities
for its exercise and the experience of its benefits. The argument that it would be wiser
to increase wages and leave to the individual the provision of his own protection is
valid for those who already possess the habit of thrift, but breaks down for the large
majority in not providing help for those who may need it most, including the man
who suffers early disability. A contributory plan offers exactly the desirable oppor-
tunity for developing this habit, and has the further value of promoting a sense of
cooperation and mutual responsibility. It furnishes the possibility of saving and
investment that is not open in the ordinary commercial channels for men on small
fixed incomes. The compulsory character of a plan does not restrict its flexibility ; the
accumulations standing to the credit of a contributor can be employed to furnish not
merely a pension on his retirement but support in case of his disability or provision
for his family in the event of his decease. Nor does such a plan militate against the
mobility of the employee ; the contributions made by him continue to be his, and
accumulate with interest, and if he chooses to withdraw from his present employ-
ment, he takes with him these accumulations in which he has secured a vested right.
A valid argument may further be made that the employer's contributions should also
belong, at least after a certain period of service, to the employees on the ground that
technically they are deferred wages. The employee protected by a plan in which he
pays his due share need not feel that he is an object of charity nor, for the same reason,
can the charge of undue privilege be brought against him, as it well might be under
a free or optional pension system.

A pension system that is based upon contributions from employer and employees
is therefore the only method by which all of the desired objects can be attained. Such

8 PENSIONS FOR PUBLIC SCHOOL TEACHERS

a system promotes the interests not only of employers and employees but of society
in general, in so far as society is interested in the promotion of individual, indus-
trial, and social welfare. The employer secures more efficient service, the employee is
protected and freed from anxiety for the future, and society benefits both from the
increased efficiency and serenity and from the prevention of the dangers that may
arise from discontent.

Pension Financing

The soundness of a pension system, as of any other financial undertaking, depends
on ability to meet the obligations incurred. One of the weaknesses of the free pension
plan is the difficulty of estimating the obligations, owing to changes in conditions
that cannot be predicted, such as the increase in the number of beneficiaries, the ad-
vance in salaries, or the lengthening of life, any one of which may impose the strain
of a cumulative burden. It is almost impossible to provide for the payment of a free
pension in any other way than by annual appropriations. A contributory plan, how-
ever, lends itself to a method of financing that is at once secure and inexpensive.
Heretofore, altho part of the pension may have been met by accumulations from the
contributions of the employees, the remainder has been met usually by annual appro-
priations by the employer. This method on the part of the employer of meeting obli-
gations as they arise is known as the cash disbursement plan ; altho not as expensive
as a free pension system, it may cost as much as a third of the expenditure for wages
in each year. It may thus become burdensome and lead to some of the abuses associ-
ated with free pension systems. To avoid this danger and to equalize the cost for both
employer and employee, the reserve plan is now advocated for both : employer and em-
ployee making their contributions at the same time, as a rule in equal sums, and thus
securing the advantages of accumulations with compound interest and of the existence
of a fund to meet obligations as they arise. Under this plan each contributor is in a
position to know exactly how much he must contribute, how much he has to his credit
in the pension fund, and further is enabled to calculate the benefits that can be pur-
chased from these accumulations. By this method adequate pension benefits can be
provided by sums not exceeding five per cent of wages contributed annually by the
employer and five per cent by the employee. These sums remain a fixed part of over-
head expenses and there is no danger of a sudden strain from the development of
unforeseen contingencies, the pension provision being made regularly in advance for
each individual employee. The reserve plan is thus not only the least expensive method
of financing a pension system, but the only one that meets the test of essential sound-
ness.

Accrued Liabilities

Up to this point the distribution of the cost of maintaining a pension system has
been discussed on the assumption that all the employees are young and of approxi-

THE SOCIAL PHILOSOPHY OF PENSIONS 9

mately the same age, and that all are just entering on their period of service. As a
matter of practice pension funds are seldom established under such satisfactory con-
ditions, but are introduced after an organization has been in existence for some time,
with employees of different ages and different periods of service. The estimate that
a pension system can be maintained at a cost of ten per cent of the payroll, divided
between employer and employees, will be true only in relation to employees who are
entering or have been in service but a short time, and who can make a sufficient number
of annual contributions to purchase adequate annuities. Under a scheme that is based
on actuarial principles, the cost of providing annuities for older employees by annual
contributions alone would be prohibitive. In order to restrict such contributions to a
maximum that can be borne by the employees, say five per cent of their pay, part of
the additional burden must be borne by the employer. In other words, the accrued lia-
bilities or those obligations that are incurred because of the service of older employ-
ees prior to the establishment of a pension system, must accordingly be assumed as a
continuous charge until the older employees have passed out of the service into retire-
ment. The burden of accrued liabilities is frequently heavy, but it cannot be neglected
in a sound pension plan. To neglect it is to invite bankruptcy ; this has been the ex-
perience of many contributory pension systems, — the absence of special funds to take
care of older members has led to the exhaustion of accumulations that should have
been kept intact to pension the younger members. The provision of the additional cost
for pensioning older employees, or to meet the accrued liabilities, is a necessary corol-
lary of the principle that all contributions, whether by the employer or employees, be
separately credited, during the period of accumulation, to the individual by and for
whom the contributions were made, and be used as contingencies arise to pay the bene-
fits due to that individual only, and for no other purpose. Under existing conditions
in most pension plans all contributions are paid into one fund, from which pensions are
paid so long as solvency continues. Bankruptcy threatens every pension system that is
on an unsound and insecure foundation, whether thru neglect of the accrued liabili-
ties or of some other of the actuarial principles involved. The ensuing failure to meet
obligations and the consequent hardship and distress imposed on those least able to
bear them impair confidence in all pension systems. Provided that other conditions of
the pension system, such as the amount of the pension, the age of retirement, and the
length of service required, are clear and definite, the cost of paying accrued liabilities
can be calculated in advance, and can be funded in the same way as the remainder of
the obligations.

The Cost of Pensions

The cost of a pension system depends on the nature of the benefits that are granted,
the age and sex distribution of the employees, their years of service, the expense of
administration, and, as has already been mentioned, the method of financing. The ex-

10 PENSIONS FOR PUBLIC SCHOOL TEACHERS

pense of administration forms but a small percentage of the total annual expenditure,
and may best be provided for separately by the employer. The accrued liabilities will
vary with the number of older employees in the service. The main cost will depend upon
the amount of pension determined as satisfactory. In general a pension ought to be
sufficient in amount to furnish adequate subsistence in old age; it cannot and should
not be expected to equal the income earned during the period of highest working
efficiency. Under a contributory plan the pensions can easily be higher than those
paid under a free pension system. The tendency has always been to fix pensions at
about one-half of the average salary earned over a period of years. Such a sum may
well be taken as an adequate standard, but for actuarial purposes it is more satisfac-
tory to eliminate the guesswork involved in anticipating exactly what the final sal-
aries will be and to determine the pensions generally approximating such a stand-
ard, but based definitely on the actual accumulations. In addition to the cost of the
pensions, the cost of providing disability allowances is also to be considered. In most
progressive industrial communities this is already provided for under the laws govern-
ing workmen's compensation, but where these do not apply, the additional cost of pro-
tection against disability is not large. The cost of refunds in case of withdrawal by
reason of dismissal, resignation, or death, and of the guarantee of a fixed amount of
interest on accumulations must also be taken into account. All the benefits here men-
tioned, provided the pension basis is approximately half salary, can be met by annual
contributions equivalent to about ten per cent of the payroll, divided equally between
employer and employees. The only additional items, which usually fall largely on the
employer, are the cost of administration and of the accrued liabilities in inaugurating
the system.

For the employees the annual cost of the pension benefit, or the annual contribu-
tions that they will be required to make, will depend not only on the amount of the
pension promised, but also on sex, present age, age of retirement, the rate of interest
at which the contributions accumulate, and the number and kinds of benefits pro-
vided. The cost may vary from two or three per cent of salary for the younger em-
ployees to as high as twelve or more per cent for the older employees. The cost of
the same pensions for women is higher than for men because women both retire earlier
and are longer lived. A system that furnishes benefits in case of disability and with-
drawal is more expensive than one without these benefits. A pension that begins at
an early age requires higher contributions than one beginning at a later age. The
individual who can make more annual contributions before his retirement than
another may make each contribution smaller, not merely because of the larger num-
ber of contributions but because of the cumulative influence of interest. Altho all
of these factors are self-evident, most of them have been neglected in the framing of
pension systems heretofore. The association of the term "pension" with the idea of
a free or gratuitous payment of money tends to obscure the fact that a sound pen-
sion system must necessarily be established on the same principles that underlie the

THE SOCIAL PHILOSOPHY OF PENSIONS 11

purchase of annuities or insurance. Even in contributory plans, however, the contri-
butions have been determined without reference to these fundamental factors, and
some pension systems have required the same annual contributions — called a " flat
rate" — from all members, irrespective of their salaries, age, or sex, or promised pen-
sion. Such uniform contributions not only fail to ensure financial security, but they
are inequitable to the employee. Under such a plan the younger employee, having
longer to wait before retirement, is likely to pay considerably more than is necessary
to provide his own pension, while the older employee will pay considerably less, the
younger men virtually paying part of the pensions of the older. Again, since the
older employee probably enjoys a higher salary, the burden imposed by the flat rate
is lighter for the better paid than for the more poorly paid participant, thus intro-
ducing an inevitable element of discontent. A sound system demands that the annual
contributions be calculated on the basis of all the factors referred to. The heavy
burden that might fall on the older employees may be avoided either by making
membership in the pension fund optional for them or by limiting their contributions
to some fixed proportion of salary, the amount of accrued liability beyond this being
carried by the employer.

Age of Retirement

The age at which retirement from service is permitted plays an important part in
determining the amount both of the pension and of the annual contribution. It is
impossible to determine dogmatically the age at which retirement should be allowed;
it will undoubtedly differ for the two sexes, and will vary according to occupation
and perhaps according to locality. In the sedentary and professional callings a man
may be at his best at the age of sixty, while in those occupations that require physical
strength and demand constant exposure to risks a man may cease to be fit at that
age. It is true that the followers of every vocation claim special privileges because of
peculiar hardships associated with it, but in general it may be said that sixty is a
generous age at which voluntary retirement may be permitted in any pension system.
Under the mistaken conception that a pension is purely a reward for services ren-
dered, and as a result of the fallacious plea of special occupational strain, provision
has been made in many systems for retirement after a certain period of service with-
out any age restriction. Retirement on the ground of service alone, however, usually
means retirement at an early age; some systems do not exclude the possibility of
retirement after twenty years of service, thus enabling employees to retire at the age
of forty-five or fifty, and to enjoy their pensions for half of their adult lives. Such
early retirement is economically and socially unjustifiable. It is unfair that the
followers of some occupations should enjoy in the prime of life a privilege meant
as a protection for old age, it deprives the occupation concerned of its most efficient
service, and it is extremely expensive, for obviously a man who retires at the age of

12 PENSIONS FOR PUBLIC SCHOOL TEACHERS

fifty-five may be expected normally to enjoy his pension for a longer period than one
retiring at sixty or sixty-five. Further, the granting of early pensions is socially detri-
mental since it is open to abuse. Such a system emphasizes the idea that a pension is
a reward for services rendered, instead of a measure intended as a provision for old
age and for the promotion of efficient service. Where this idea prevails it is not un-
usual to find pensioners enjoying a retiring allowance from one employer while actively
engaged in occupation for another. The man who at fifty feels that he has discharged
all obligations for which the pension is a reward, feels also that he cannot live on the
reduced income represented by the pension, and that he is justified in adding to it
in any way open to him. This is merely proof of the fact that every normal man in
the enjoyment of health prefers to remain at his work as long as his efficiency con-
tinues. It is only the young employee that dreads the prospect of continuing in his
occupation for thirty or forty years, a dread that is replaced by a desire to continue
as the opportunity of retiring approaches. A minimum requirement of service is, of
course, necessary, if only to make possible the accumulation of sufficient contributions
toward a reasonable pension. But it is difficult to see why any employee with good
health and unimpaired faculties should be retired, except on the basis of age in addi-
tion to a service requirement. A minimum age limit may be established, at which an
employee may retire voluntarily or be retired if his efficiency is impaired. There is,
however, no reason for placing difficulties in the way of continuing in service for some
years longer up to a compulsory age limit, which will vary in different occupations.
The postponement of the age of retirement as long as is compatible with occupa-
tional efficiency implies a reduction in the burden of annual contributions, and if
voluntarily carried beyond the minimum age of retirement means a pension which
rapidly increases in size as the result of additional accumulations.

Pension Benefits

Up to the present time the payment of pensions has seldom taken any other form
than a monthly allowance to the pensioner as long as he lives. Since the aim of recent
pension philosophy is to introduce as much flexibility as possible, thei'e is a tendency
to provide different methods for paying out the accumulations standing to the credit
of a pensioner at the time of his retirement. These options may provide benefits for
the pensioner himself alone, or for the pensioner and his widow after his death, or
either of these benefits with a return to his estate of any sums remaining to his credit
after the payment of these benefits. The accumulations virtually belong to the em-
ployee: the chief object of their existence is accomplished when the pensioner makes
satisfactory provision for his own maintenance at the time of his retirement; beyond
that he may have an opportunity of making such further provision for his dependents
as may seem to him desirable.

The essential purposes of a pension system are met if it makes adequate provi-

THE SOCIAL PHILOSOPHY OF PENSIONS 13

sion for old age, and if it succeeds in promoting efficient service. These purposes can
be carried out only when the cooperation of employer and employees is enlisted in
sharing the burden with justice and fairness to each side, and as economically as
is consistent with the objects proposed. In addition to the provision of protection
against the risk that may come from loss of wage-earning efficiency due to old age,
the interests of efficient service require also protection against loss of wage-earning
capacity as a result of disability. While cases of disability are not frequent, they are
accompanied when they do occur with considerable distress. In many occupations they
are already covered by workmen's compensation laws. Where such provision is absent,
it may well be made a part of a pension system. The chief questions underlving
the granting of disability allowances are whether in the interests of efficiency the
protection should be furnished to employees from the time of their entrance into
service or only after a few years of service, and how the financial cost of such allow-
ances should be met. The period of service that should be required as a qualification
for a disability pension will depend probably on the number of years that it takes
an employee to become thoroughly efficient in his occupation and to acquire perma-
nency of tenure ; the period will accordingly vary with the occupations. In order to
be adequate, the amount of a disability allowance needs, like the old age pension, to
approximate half the salary at the time of retirement. Part and perhaps all of the
cost of such allowances can be met by the accumulated contributions of the employer
and employee; the remainder, like the accrued liabilities, may be paid by the em-
ployer, at least until statistical knowledge of disability accumulates sufficiently to
make possible the calculation of definite contributions to provide for such contin-
gencies. This will not prove such a burden as it appears at first sight, partly because
the cases of retirement on the basis of disability are likely to be few, partly because
the contributions paid by the employer on account of employees who leave before
completing a minimum period of service may well be retained and accumulated for
the payment of disability grants. In every case, of course, the grants would be made
only for permanent disability, and would be subject to periodical review by a medical
board.

By the addition to the main benefits of an old age pension of such provisions for
disability, options at retirement, and returns of contributions, a pension system, man-
aged by a board representing both the employer and employees, and acting on actu-
arial advice, should be successful in promoting the objects and interests that are
dictated by a sound social philosophy and are warranted by the recent experience
of both private and public services.

Reports and Valuations

Such success, however, will depend ultimately upon the possession of definite infor-
mation concerning the obligations undertaken. This information can be furnished only

14 PENSIONS FOR PUBLIC SCHOOL TEACHERS

from accurately kept and detailed records and carefully constructed reports, present-
ing a clear statement of assets and liabilities. Pension reports should indicate the ac-
tual and expected resources, the rate of interest, the nature of investments, the rate
of mortality as compared with accepted tables, as well as the cost of benefits of differ-
ent kinds that may be expected to accrue to those in service at the time that the report
is issued. More especially are clearness and detail essential in a newly created pension
system until the vital statistics of the particular service affected are thoroughly estab-
lished. Many questions around which the foundation of a sound pension system centres
are involved here — longevity, the incidence of disability, the rate of withdrawal, and
the rate of mortality. Accurate records and careful reports may serve not merely as
a method of checking up the reliability and adequacy of a pension system, but as a
measure for controlling and perhaps ultimately reducing the cost.

The construction or valuation of a pension system requires complicated calculation.
It is necessary to have complete information concerning the age, sex, and length of
service of all who are included in the system ; information for as many years as possi-
ble concerning their salaries, and the experience of the system with regard to with-
drawals, disability, and death. The tables of probable mortality and expectation of
life which have been derived from the experience of insurance and annuity associations
must then be used to estimate the proportion of those in the service who will probably
die before they reach the age of retirement. Others will withdraw from the service or
be disabled before that time. From such tables, similarly, may be derived the average
expectation of life of the group which remains in service until retirement, and the
average number of years of their receipt of retiring allowances. This multiplied by
the amount of the average pension, taking interest into consideration, gives the pro-
spective financial load for the group. The age of retirement is fixed by the regula-
tions of the pension system; the amount of the pension may be related to present or
prospective salaries. To ensure the existence of funds to pay the pensions when they
are due requires the fixing and continuance of appropriate contributions, a conserva-
tive rate of interest, and adjustments for the return of contributions for those who
withdraw or die early. Different provisions for men and women and special provisions
for widows necessitate further adjustments, and all of the factors that have been men-
tioned must be separately considered for those who have already retired, those who
are now in the service, and those who will enter the service hereafter. Even so simple
a statement of some of the mathematical problems of pension systems indicates that
they can be adequately solved only by persons of special training and experience, —
that is, by professional actuaries. The further fact that all the elements that have been
mentioned are constantly changing, indicates the necessity of almost continuous
expert attention. It is especially necessary to establish mortality and other tables
representing the experience of the system itself, as in some respects the experience
of each system is peculiar.

THE FUNDAMENTAL PRINCIPLES OF PENSIONS

The following fundamental principles of a sound pension system for
teachers were recommended to the Carnegie Foundation on April 27,
1917, by a commission comprising representatives of the Association of
American Universities, the National Association of State Universities,
the Association of American Colleges, the American Association of
University Professors, and the Carnegie Foundation. These principles
were approved by the Trustees of the Carnegie Foundation on May
18, 1917, and carried out in a reorganization of the pension system of
the Foundation in 1918.

1. The function of a pension system is to secure to the individual who
participates in it protection against the risk of dependence due to old
age or to disability.

2. The obligation to secure this protection for himself and for his family
rests first upon the individual. This is one of the primary obligations
of the existing social order. Society has done its best for the individual
when it provides the machinery by which he may obtain this protec-
tion at a cost within his reasonable ability to pay.

3. Men either on salary or on wages are, in the economic sense, employ-
ees. The employer, whether a government, a corporation, or an indi-
vidual, has a direct financial interest in the establishment of some
pension system which shall enable old or disabled employees to retire
under satisfactory conditions. In addition, society demands to-day
that the employer assume some part in the moral and social better-
ment of his employees. The obligation of the employer to cooperate
in sustaining a pension system is primarily a financial one, and in the
second place, a moral one.

4. A pension system designed for any group of industrial or vocational
workers should rest upon the cooperation of employee and employer.

5. Teachers pensions should be stipendiary in character, amounting to
a fair proportion of the active pay.

16 PENSIONS FOR PUBLIC SCHOOL TEACHERS

1. In actuarial terms a pension is a deferred annuity upon the life of one
or more individuals, payable upon the fulfilment of certain conditions.

2. In order that an individual participating in a pension system may be
assured of his annuity when due, one condition is indispensable: There
must be set aside, year by year, the reserve necessary, with its accu-
mulated interest, to provide the annuity at the age agreed upon. On
no other conditions can the participator obtain a satisfactory contract.
The man of thirty who participates in a pension plan under which
he expects an annuity thirty-five or forty years in the future will take
some risk of disappointment in accepting any arrangement less secure
than a contractual one.

3. A pension system conducted upon the actuarial basis of setting aside,
year by year, the necessary reserve is the only pension system whose
cost can be accurately estimated in advance.

4. A method by which a pension is paid for in advance in annual or
monthly instalments is the most practical plan which can be devised
for purchasing a deferred annuity, provided that the contributions
begin early in the employee's career, and provided also that the
contributions paid in year by year receive the benefit of the current
interest for safe investments.

5. As a matter of practical administrations pension system should apply
to a group whose members live under comparable financial and eco-
nomic conditions. To attain its full purpose, participation in the
pension system to the extent of an agreed minimum should form
a condition of entering the service or employment the members of
which are cooperating in the pension system.

THE PRESENT STATUS OF TEACHERS PENSIONS

European Systems

Teachers pensions are now provided almost universally in European countries. This
has followed from the fact that the profession of teaching has long been under the
more or less direct control of a central administration. In these countries teaching is
adopted as a life career, entrance to which depends upon a period of professional train-
ing and certification by the state. Once a teacher enters upon his work he enjoys se-
curity of tenure and a moderate and progressive income ; pensions and disability pro-
visions have been added, as they have in other branches of public service, to attract
able candidates to the profession, to improve efficiency, and to afford the teacher
protection in case of retirement from service owing to age or disability. Teachers
pensions are accordingly found in Belgium, France, Great Britain and Ireland, Italy,
Greece, and Russia; in Holland, Denmark, and Sweden; as well as in all the states of
the German Empire and Austria-Hungary ; and, outside of Europe, in New Zealand
and Japan, South America and South Africa. In the large majority of these systems
the teachers cooperate with the state in the provision of pensions ; in Italy the state
makes no contribution; while in Japan and in all but four of the states of Germany
free or non-contributory pension systems prevail. Of the free pensions in Germany,
one of the oldest and best known of the elementary school teachers has said:1 "The
straight pensions push the salary question into the background considerably, since an
official with the right to a pension and protection for his dependents can hardly com-
pare his income with those in other callings and cannot easily base a claim for salary
on such comparisons. In practice the result is that in the regulation of salaries the
benefits of a pension privilege are estimated too high." In the contributory systems
the annual contributions vary from three to ten per cent of salary, the periods of ser-
vice required from twenty-five to forty years, the age of retirement from fifty-five to
seventy, and the amounts of pensions from one-sixtieth of the average salary over
a period of years for each year of service to three-fourths of final salary. In England
and Ireland the pension consists of an annuity purchased with the teachers accumu-
lated contributions and an additional sum paid by the state; both systems are subject
to periodical actuarial investigations, with necessary changes both in contributions
and annuities. The pensions in England and Ireland are small but secure.

1 J. Tews, in Rein, Encyklopadisch.es Handbuch der Padagogik, vol. vi, p. 618. 1907.

PENSIONS FOR PUBLIC SCHOOL TEACHERS

Teachers Pensions in Foreign Countries

Country

Source c
State

rf Funds

Teachers

Retiring Alloivances
Basis Amount
Service | Age

Belgium

Appropriations
from current
revenues

From 3% to 5% of
salary and addi-
tions on increase
of salary

One-fiftieth of average salary for last
five years of service for each year of
service up to a maximum of two-
thirds of the average salary

France

Appropriations
from current
revenues

5% of salary and
additions on in-
crease of salary

One-half of the average of the six
highest salaries and one-fiftieth of
the average for each year after 25
years of service up to a maximum of
three-fourths of the average salary

England

Appropriations
according to
estimates

$17.49 men; $11.67
women, annually

Annuity purchased with accumu-
lated contributions and $4.86 from
state for each year of service
Average, men $195.50; women $142.85

Prussia

Appropriations
from current
revenues

From fifteen to forty-five sixtieths of
final salary according to years of ser-
vice
Average, men $468; women $271

Austria

Appropriations

3.8% of salary

40% of final salary after 10 years of
service and 2% of final salary for each
year of service thereafter up to a maxi-
mum of full salary after 40 years of
service
Minimum final allowance $160

Italy

Premiums accord-
ing to age

Annuity purchased with accumu-
lated contributions

New Zealand

Subsidy

5%tol0%ofsalary
according to age
at entrance

40 men;
30 women

66 men;
66 women

One-sixtieth of average salary during

last 3 years of service for each year of

service

Average, about $250

Transvaal

Annual sum
equal to teach-
ers contribu-
tions

3% of salary

Total contributions with 4% interest
returned in a lump sum

Japan

Appropriations
from current
revenues

15-40

One-fourth of final salary plus one-
two-hundred-fortieth of final salary
for each year of service after 15 years
and up to 40 years
Average, about $46

Systems in the United States

Pension systems for teachers in the United States have but a brief history; the first
system for city school teachers was established in Chicago in 1893, followed three years
later, in 1896, by the organization in New Jersey of a mutual benefit plan for disabled
teachers in that state. The majority of existing systems have been established dur-
ing the past ten years. There are at the present time twenty-one state pension sys-
tems, while four other states have general laws permitting local bodies to set up plans.
Of the twenty-one state systems fifteen1 have adopted the contributory plan and six2
the non-contributory scheme. Of the permissive systems three3 are contributory and
one4 n on -contributory. In a few of the states the larger cities are exempt from the

1 California, Connecticut, Illinois, Indiana, Massachusetts, Michigan, Minnesota, Montana, Nevada, New York, North
Dakota, Pennsylvania, Vermont, Virginia, and Wisconsin.

2 Arizona, Maine, Maryland, New Hampshire, New Jersey, and Rhode Island.
s Kentucky, Ohio, and Utah. * Colorado.

THE PRESENT STATUS OF TEACHERS PENSIONS 19

operations of the state system. There are accordingly, in addition to the state sys-
tems, sixty-four city and county systems, of which only three are on a non-contrib-
utory basis. The details of all of these systems are given in the tabular statement
and summary on pages 56 to 72. The eighty-nine systems here referred to are covered
by sixty-seven separate provisions given in the tables and summary. The distribution
of the state systems is shown by the map on page 73. The following discussion is re-
stricted to them. The prevailing tendency to establish state rather than local systems
is most fortunate. A sovereign state has advantages of freedom and security in caring
for its employees that are unapproachable by any local or private establishment.

Lack of Scientific Basis

Beyond their classification as contributory or non-contributory plans, the various
systems show uniformity in only one respect. With the exception of the systems of
Massachusetts, Connecticut, and Erie, Pennsylvania, which fall into one group, and
Pennsylvania and New York City, which form another, no serious attempts seem to
have been made to look ahead and to ensure security for the future by the employ-
ment of a sound and scientific basis. Whether these funds were inaugurated in a
merely sentimental mood, or thru imitation, or in honest ignorance, or in the attempt
to start some system, however faulty, with the hope of improving it later, the result
has been the same, — after the needs of older teachers have been satisfied, most of these
funds have found themselves facing bankruptcy. At last, however, the threat of insol-
vency, involving disappointment to many at a time when help is most needed, together
with the reports of commissions that have investigated the condition of such funds
as those of New York City1 and the State of Illinois,2 has directed the attention of
teachers to a consideration of some of the more fundamental principles involved. It
is gradually but surely being realized by those who are interested in pensions that
there is no mystery underlying these principles, and above all that financial obliga-
tions cannot be carried out for any length of time unless funds are in existence to
meet them, and that so far as teachers and their employers are concerned, the chief
question to be studied is how to provide these funds in the most inexpensive and
economical method consistent with justice to the teachers, fairness to the public, and
the promotion of efficiency in education.

The haphazard development of the pension systems now in existence is well illus-
trated by the large number of variations that are found in such fundamental matters
as management, maintenance, amount of contributions annually paid by teachers,
amount of pension, age and years of service required as qualifications for retirement,
and the equity of teachers in their contributions in case of withdrawal from service
on account of resignation, dismissal, or death.

1 New York City Pension Commission : Report on the Teachers Retirement Fund of the City of Neiv York, 1915.
* Illinois Pension Laws Commission: Report, 1916.

20 PENSIONS FOR PUBLIC SCHOOL TEACHERS

Administration

The practice in the management of pension funds appears to vary somewhat with
the character of the system. In general it seems to be the aim of the contributory
systems to give the teachers representation and of the non-contributory systems to
retain control in the hands of the state. In three of the non-contributory systems the
state board of education is charged with the management of pensions, while in three
others this function is entrusted to the state superintendent of education. Only in
California, Nevada, and Virginia, of the contributory systems, does the state board
of education administer the pensions, while the remaining systems have retirement
boards consisting of state officials ex-ojjicio and teachers either appointed or elected.
The representative boards have from three to seven members, and generally include the
state superintendent of public instruction; the ex-qfficio officers are either the state
treasurer,1 the state auditor,2 the state attorney-general,3 the superintendent of in-
surance,4 or the state bank commissioner.4 The teachers representatives, together with
the state superintendent of public instruction, usually constitute a majority of the
members of the boards. The constitution of such a board is important since it needs
to represent the social sense of the community as well as actuarial science.

Amount of Pensions

In the majority of the state systems the amount of the pensions to be paid is not de-
termined by the age at which retirement takes place, sex, the rate of interest, or the
amount of money available. The most frequent basis that is used is the average salary
received for a few years before retirement. In one system the pension consists of a sum
equal to one-half of the largest salary received during service ; in one it is equal to
sixty per cent and in five to fifty per cent of the average salary received during the
last five years of service. In eight systems the pension is the same for all teachers, and
in three is a fixed amount for each year of service, regardless in both cases of the aver-
age salary prevailing in the state. The amount of an annuity can be determined on an
actuarial basis only by the amount of money available, the age and sex of the recip-
ient, the rate of interest, and the table of mortality. Such an actuarial foundation is
provided by only three state systems, Connecticut, Massachusetts, and Pennsylvania,
and only these systems offer options by means of which a teacher may provide some
protection for his dependents.

Service and Age Retirement

From an analysis of the state pension systems that are here being considered the
inference may be drawn that pensions to teachers are granted generally as rewards for

1 Illinois, Montana, North Dakota, Pennsylvania, Vermont, and Wisconsin. * Indiana and Minnesota.

3 Indiana and Montana. 4 Connecticut and Massachusetts.

THE PRESENT STATUS OF TEACHERS PENSIONS 21

service. Thirteen out of twenty-five state systems allow teachers to retire on the basis
of service alone, and the requirement varies from twenty years in two systems1 to
thirty-five years in three,2 while five3 permit retirement after twenty-five years and
three* after thirty years. Assuming that the majority of teachers begin their service
at the age of twenty-five, they could under these provisions retire at as early an age
as forty-five, and none need remain in service after sixty. Retirement on the basis of
service alone is an expensive luxury. It requires the annual contribution beginning
at twenty-five of one-third of a man's salary to provide a half-pay pension after
twenty years of service; it takes twenty per cent to provide such a pension after twenty-
five years, and fifteen per cent after thirty years of service. Neither teachers nor the
public appear to be willing to pay such a price. This, however, is no misfortune, for
such retirement encourages the withdrawal from service of experienced teachers at
the time when they are doing their best work and injures the cause of pensions in
general by the creation of a privileged class who may be at leisure for a third or a
half of their adult lives. A few systems, accordingly, require both an age and a service
qualification for retirement; one system5 permits it at the age of fifty, two6 at sixty;
two7 require teachers to have reached the age of sixty and to have served thirty years,
while only one8 requires the same age and thirty-five years of service. Two systems9
permit women to retire a few years earlier than men. Only two systems10 permit re-
tirement at a given age, irrespective of previous service. In most cases where an age
basis is provided retirement is voluntary at the stated age or later; in three systems11
seventy has been fixed as the age of compulsory retirement.

Disability Allowances

Disability allowances are usually a proportion of the amount paid for retirement
on account of age, — an unsatisfactory basis, generally yielding less than subsistence.
There is, however, more justification for guesswork in the case of disability pen-
sions, since so little is known about the incidence of sickness among teachers. No
justification exists for the general lack of provision for the prevention of abuse of
disability privileges. Medical examinations are required in every case before disability
pensions are granted, but onlv the most recently established systems, like that of
Pennsylvania, require periodical medical examinations and the return to service of
those who are shown to have recovered from their disability. The whole subject of the
kind of disability to which teachers are peculiarly exposed needs further study, before
a completely intelligent administration of these benefits can be developed. There is

I Minnesota and New Jersey. - Connecticut, Indiana, and Rhode Island.

s Arizona, Montana, New York, North Dakota, and Wisconsin. 4 California, Michigan, and Nevada.

5 Illinois. 8 Maine and Maryland.

7 Massachusetts and Vermont. 8 New Hampshire (in the case of men). 9 New Hampshire and Virginia.

10 Connecticut (as an alternative to the thirty-five years of service alone) and Pennsylvania.

II Connecticut, Massachusetts, and Pennsylvania.

22 PENSIONS FOR PUBLIC SCHOOL TEACHERS

very little guidance concerning the subject to be drawn from actual practice, either
as to the amount of the pension that should be granted or the years of service that
should be required. There is no reason, for example, why an allowance for genuine per-
manent disability should be much less than an old age pension, nor why one * system
should require ten years of service as a qualification, while nine2 others require fifteen
years, one3 eighteen, one4 twenty-five, and one5 thirty-five, while one6 other system
grants a disability pension only to those incapacitated after the age of fifty-five.

Financing

In the non-contributory systems of Arizona, Maine, Maryland, New Hampshire,
New Jersey, and Rhode Island, the pensions are paid entirely out of state appropria-
tions ; in the cases of Maine and Maryland, however, the amount of the annual appro-
priation is limited to a fixed maximum, with the consequent prorating of pensions that
are already in force in those years when the total cost is likely to exceed the maxi-
mum. In the contributory systems the share of the state is paid sometimes out of regu-
lar appropriations, as in Connecticut, Massachusetts, New York, North Dakota, Penn-
sylvania, Vermont, and Virginia, the annual appropriation being limited to $10,000
in Vermont and to $5000 in Virginia; sometimes out of the proceeds of a property
tax, as in Illinois and Minnesota, or out of the tax on inheritance and transfers of
property, as in California; sometimes out of the school fund, as in Indiana. In Wis-
consin the state, by recent legislation (1917), undertakes only to make up deficits as
they arise. In most of the regulations provision is made for supplementing the re-
sources provided by the public with such miscellaneous support as may come from do-
nations, gifts, legacies, and bequests. Such sources, however, cannot be depended upon
for any adequate and regular supply of funds. The expenses of administration in most
cases are paid out of the general fund, to that extent reducing the amount available
for pensions, even tho the sum required for expenses forms but a minor part of the
total cost of maintaining a pension system. A few systems, including Connecticut,
Massachusetts, Montana, New Jersey, and Pennsylvania, make separate appropriations
for administration, thus leaving the general fund intact to meet the purpose for which
it exists. It is obvious that no state can look forward with serenity to the annual ap-
propriation of such large, indefinite, and increasing sums; that no definitely limited
amount can meet the needs of an enlarging service; that the proceeds of property and
inheritance taxes have no relation to the needs of a pension system ; and that irreg-
ular sources like gifts, deductions, and so on, cannot be depended upon to make up
deficits. Pension systems have little or no security under such methods of providing
funds.

1 Pennsylvania.

2 California, Illinois, Massachusetts, Michigan, Minnesota, Montana, Nevada, New York, and North Dakota.
8 Wisconsin. * Indiana. B New Jersey. 6 Connecticut.

THE PRESENT STATUS OF TEACHERS PENSIONS 23

The uncertainty that underlies most pension funds is further indicated by the
variation in the amount of annual contribution that is expected from the teachers
in the contributory systems. In ordinary commercial insurance the premium rates for
similar benefits show only slight differences throughout the country. The only uni-
formity in the contributory feature of pension systems is an evident desire to make
the teachers contributions as low as possible, regardless of whether or not they are
adequate to furnish the promised benefits. In fact, a very common formula1 is that
a teacher before becoming eligible for retirement shall have contributed a total sum
equal to or even less than the amount of the prospective pension for one year only;
the obligations beyond being apparently assumed by the general fund, the provision
for which is equally inadequate. Recent pension investigations have emphasized the
importance of the ordinary business method of keeping an individual account for
each teacher in order that he may be sure at least that his own contributions are al-
lowed to accumulate to provide a pension benefit for him alone. It too frequently hap-
pens under the prevailing practice that the money contributed by the younger teach-
ers is used to pay the pensions of the older. In four states2 the amount of the annual
contribution is made the same for all teachers, irrespective of age or salary; in three
states3 the contributions consist of flat rates within three or four groups of teachers,
graded according to years of service; in the remaining systems the teachers contribute
a percentage of their salaries, varying from one-half of one per cent to seven per cent
in each year. With the exception of Connecticut, Massachusetts, and Pennsylvania,
no state system definitely relates the contributions to age, years of service, sex, rate
of interest, or the amount of pension to be paid, altho there is sometimes a rough
estimate that a particular annual contribution will lead toward a pension that will
be, say, half of the final salary before retirement, — which salary cannot, of course, be
accurately estimated so long in advance. Teachers pension systems are thus still re-
garded as mutual associations, in which benefits are paid out of a general fund so long
as the money lasts; or as charitable relief, the chief burden for which is placed upon
the public treasury, unless this is so protected that only limited appropriations can
be provided each year. The one conscious effort that is frequently made for security
is inequitable; this is the merging of the teachers contributions, as soon as paid, into
the general fund for those who remain until retirement, and not regarding them as
the teacher's own savings, to which he is entitled if he withdraws from service. In six
states there are no refunds whatever. Most systems provide for the return of only a
part of the contributions, without interest, in the event of resignation, dismissal, or
death. In three states all of the contributions are returned without interest; but only
three state systems4 refund the whole of the teachers contributions with interest at
a fixed rate.

1 California, Illinois, Indiana, Michigan, Minnesota, Nevada, New Jersey, New York, North Dakota, and Wisconsin.

2 California, Montana, Nevada, and Ohio. 3 Illinois, Indiana, and Minnesota.

4 Connecticut (with actual interest earned), Massachusetts (with interest at three per cent), and Pennsylvania (with
interest at four per cent).

24 PENSIONS FOR PUBLIC SCHOOL TEACHERS

Financial Unsoundness

The inevitable consequence of the development of pension practice in this country
until recently, without reference either to the social philosophy that should be its jus-
tification or the actuarial principles that should be its foundation, has been insolvency,
either actual or threatened. It is difficult to persuade teachers of the insecurity of sys-
tems of which they are members, for, so long as there are funds with which to meet
current obligations, they regard their systems as sound. Fortunately, during the past
three years two exhaustive studies of pensions have been made, one in New York City
and one in the State of Illinois, which prove convincingly that a pension system is
neither sound nor secure unless, like an insurance company, it is in a position to meet
its obligations to all its participants when they become eligible for the promised bene-
fits. Whether or not a pension system shall be established is a matter of social phi-
losophy; how it shall be organized is a matter for the actuary. This expert, however, is
rarely consulted until bankruptcy is imminent. The importance of such expert advice
has been recognized in the recently established pension plans of Connecticut, Massa-
chusetts, New York City, and Pennsylvania, in which provision is made for keeping
essential and accurate records, issuing annual reports, and making periodical actua-
rial investigations. Attention has been focused on the whole subject by the consid-
eration given to the theory in the reports of New York City and Illinois, and by the
practical incorporation of new principles in the important Massachusetts Teachers
Retirement System, which is discussed later.

The Report of the New York City Commission

The New York City Pension Commission, which was appointed in 1913, issued its
report on the New York Teachers Retirement Fund in 1915. * The report contained
a descriptive account, a critical study, and suggestions for a reorganization of the
fund on sounder actuarial principles, and was accompanied by detailed actuarial cal-
culations, based on a careful investigation of the vital statistics of the teaching pro-
fession. According to this report the old plan, which followed the prevailing prac-
tices just described, failed to promote the efficiency of the service and was conducted
without any regard for or knowledge of the cost. A continuation of the scheme would
have required annual appropriations that might amount to 20 per cent of the pay-
roll. The fund's actuarial liabilities amounted to $69,809,760, with prospective assets
of only $15,066,440 to meet these obligations, leaving a deficiency of $54,743,320
or about twice the amount of the annual payroll. The failure of such a system was
inevitable from the start; it was hastened by lax administration. The fund was used,
for example, to get rid of undesirable teachers ; teachers were retired before they had
completed the required period of service; disability allowances were granted on the
sole evidence of the applicant's own physician ; no distinction was made in the cost of

1 New York City Pension Commission: Report on the Teachers Retirement Fund of the City of New York, 1915.

THE PRESENT STATUS OF TEACHERS PENSIONS 25

retiring men and women; age was not considered as a basis for retirement; teaching
experience outside the city was counted toward service retirement, altho no contri-
butions were paid for this period ; and too much reliance was placed on fluctuating
revenues from miscellaneous sources.

The Commission concluded that the chief problem in establishing a pension system
is financial, and that the cost cannot be calculated without a knowledge of the facts
involved and rigid adherence to principles accepted from the start. It recommended
that retirement should be on the basis of age as well as of service, that provision should
be made for retirement on the ground of disability only when this was adequately at-
tested by physicians, employed by the pensioning authority, and investigated period-
ically, that definite rules should be laid down to govern cases of service outside
the system covered by the pension, and that teachers contributions be returned with
interest in case of resignation, dismissal, or death. Each additional benefit, however,
would mean an increase in the amount of the annual contribution.

In the opinion of the Commission the financial problem of pensions is complicated
by a number of factors. When a new plan is substituted for one that has failed, three
factors must be taken into consideration. The first is the problem of obligations
already assumed or soon to be assumed; the second is constituted by the body of
teachers in active service; and the third by teachers who will enter the service in the
future. It was suggested in the report that the city, after careful revision of the list
of pensions already being paid, assume its obligations, if possible; that in the case of
the active teaching force, the city assume all the obligations above the amount raised
by teachers contributions, up to 8 per cent of their salaries, on a new scale gradu-
ated according to age and length of service. It was estimated that the present value
of the city's obligations for these two classes was $27,899,430, which the city could
liquidate on the cash disbursement plan by sixty annual appropriations of $1,233,220
each. The teachers appointed in the future would enter on the basis of an actuarially
adjusted scheme.

The chief problem for the city, which must consider provisions not only for teachers
but also for employees in other branches of its service, was how to meet the cost, which
would undoubtedly be great. Two methods might be employed. The city might make
annual appropriations to meet its obligations as they fall due each year; that is, adopt
the "cash disbursement" plan. Or, having calculated the future cost, it might set aside
during the active service of employees amounts which with interest accumulations
would be adequate to pay the pensions in the future; this is the " reserve "" plan. The
first plan is that most commonly adopted; it is simple and attractive because in the
beginning the demands to be met are small, only to increase with amazing rapidity.
The bankruptcy of most current schemes, apart from their inadequate planning, is due
largely to the phenomenal increase of the demands. The reserve plan, on the other
hand, takes into consideration the factor of interest, which accumulates rapidly. It is
efficient not merely because it is cheaper, but because each contributor can feel when

26 PENSIONS FOR PUBLIC SCHOOL TEACHERS

he pays his own assessment that the city is matching it with its contribution, and that
when the time comes for his retirement these two sums will have accumulated a fund
to pay his expected allowance. Under the reserve plan the expenditure for pensions
is reduced to little more than one-half of the expenditure under the cash disburse-
ment plan, the amount to be set aside is a constant factor for both city and employees,
and each generation taxes itself to pay its own pensions; under the cash disburse-
ment plan the city's share is changing and constantly increasing, and the burden is
shifted from one generation to the next. A plan embodying the recommendations of
the Commission and its experts, but making certain concessions to the demands of
the teaching body, was drawn and passed in 1917.

The new system is to be administered by a board of seven members, some ex-qffi-
cio, some appointed, and some elected by the teachers. The city will bear the cost of
administration, of the pensions due under the old retirement plan, and of the accrued
liabilities, by annual appropriation on the cash disbursement plan. To meet the cost
of future pensions the contributions of the city will be made annually to accumulate
a reserve fund, and the teachers will contribute such sums as will yield, together with
the city's share, pensions equivalent to half of their average salaries during ten years
preceding retirement, which will be permitted either at the age of sixty-five or after
thirty-five years of service. At the time of retirement the teacher may choose an an-
nuity for himself alone, or provision for both himself and his dependents, or other
forms of benefit, approved by the board. Disability allowances are to be granted after
ten years of service, subject to periodical examinations by physicians of the Retire-
ment Board, and will be equal to twenty per cent of the average salary from the city
together with an annuity purchased by the teacher's own accumulations. Their ac-
cumulated contributions with compound interest at four per cent will be returned to
teachers withdrawing from service for any reason, and in case of death additional bene-
fits of fifty per cent of salary in the year preceding death will be paid to dependents.
Actuarial investigations are to be made in 1919, 1922, and every five years thereafter.
The system is under the general supervision of the State Department of Insurance.

The Report of the Illinois Commission

The conclusions of the New York City Pension Commission were fully corroborated
in the report of the Illinois Pension Laws Commission 1 which was issued in 1916. This
Commission was appointed by the governor of the state in 1916 to investigate the
operation of all existing pension laws in the state, to gather information on the
present and probable future cost of these funds, and to enquire into the operation of
pension laws in other states and countries. In a survey of the history of pensions in
Illinois the report brings out significantly the fact that they are characterized by an
absence of foresight, ignorance of the probable future cost of the obligations under-

1 Illinois Pension Laws Commission : Report, 1916.

THE PRESENT STATUS OF TEACHERS PENSIONS 27

taken, and complete absence of uniformity of policy in such matters as contributions,
age and service qualifications for retirement, refunds in cases of withdrawal, and the
amount of pensions. The Commission concluded that the existing pension funds cov-
ering policemen, firemen, and teachers were so unsound that it would be impossible
to make any patchwork attempts at improvement, and that the only reasonable pro-
cedure would be entirely new legislation, based on definite principles, which the Com-
mission proceeded to consider.

The Commission accepted the principle that a pension system for public employ-
ees is essential in the interests of public service in order that continuity of competent
service may be secured, that means may be at hand to relieve the service of those who
have become incompetent thru superannuation, and that protection may be afforded
to employees and their families in old age. A sound pension system encourages
thrift, and is, for the man of small resources, the most advantageous form of safe
and secure investment by means of savings during the most productive period of life.
In accordance with this principle the Commission advocated the extension of pro-
tection to the dependents of employees, a form of protection which is virtually in
the nature of compulsory life insurance. The pension to employees should be granted
only on the basis of the attainment of a minimum age as well as length of service,
since "it seems clear that some of the greatest abuses of a pension system come from
the failure to specify a pi*oper minimum age of retirement.-11 Minimum pensions, vary-
ing with the different services, should be provided and maintained by contributions
from employers and employees, with extra or surpensions accumulated by additional
contributions made as salaries increase. The employers contributions should be paid
in at the same time as those of the employees, since the reserve plan is both a more
economical and a more secure basis than the cash disbursement plan. All contributions
made by the employees should be returned with the accumulated interest in case of
withdrawal from service. The principles recommended by the Commission are embod-
ied in an outline for a standard pension plan, and additional suggestions are proposed
for bringing existing funds under this plan, in other words, for meeting the accrued
liabilities.

The Massachusetts Plan

The consideration of sound pension principles combined with the actual or threat-
ened failure of a number of existing pension systems has borne fruit in recent legis-
lation, which falls into two groups. The first teachers pension system to make a de-
parture from the prevailing tradition was that established in Massachusetts in 1913;
since that time Erie, Pennsylvania, in 1916, and Connecticut, in 1917, have followed
the lead of Massachusetts and have adopted almost identical systems. Additional
study of the subject led to the establishment of a somewhat different plan in New
York City in 1917, followed in the same year with certain modifications in Penn-
sylvania. Both groups are open to certain criticisms, but both aim to embody sound

28 PENSIONS FOR PUBLIC SCHOOL TEACHERS

principles. It is not to be expected that there shall be uniformity throughout the
country; the only uniformity that is desirable is that all systems shall be as financially
sound as actuarial calculation can make them, and shall secure the ends at which a
pension system aims.

The Massachusetts Teachers Retirement Act was passed in 1913 and came into force
in 1914 as the result of a careful study inaugurated by state commissions1 in 1910 and
1913. It applies to all teachers in the Commonwealth with the exception of Boston.
The system is administered by a teachers retirement board of seven members, includ-
ing the state insurance commissioner, the state bank commissioner, and the state com-
missioner of education, three members elected by members of the retirement associa-
tion, and a seventh member elected by the other six. Membership in the Association
was made optional for teachers in service and compulsory on all new entrants. The
system is contributory, and the assessments are determined annually by the retire-
ment board in accordance with actuarial advice, but are limited to sums equal to from
three to seven per cent of salaries. Teachers may retire voluntarily at the age of sixty,
or may be retired by the employing school committee at any time after that age if
incapable of discharging their duties; retirement is compulsory at seventy. On reach-
ing the age of retirement and after thirty years of service teachers become entitled
to an allowance consisting of an annuity purchased with their accumulated contribu-
tions and a pension of an equal amount paid out of annual state appropriations. An
option is permitted by which a retiring teacher may accept annuities of smaller amount
with the provision that these be continued after his death to his dependents, as he
may direct. In case of teachers withdrawing from service before reaching the age of
retirement, or in case of death, their estates are entitled to a return of all their con-
tributions with compound interest at three per cent. Disability allowances were not
included in the original act but were added in 191 7, and provide these benefits to teach-
ers who become incapacitated for continued work in the schools after fifteen years of
service. While this plan marks a considerable step in advance and opens up a new era
in the history of teachers pensions in this country, it is still open to the objection that
it is impossible to predict what the probable cost of the share assumed by the state
is likely to be in the future on the cash disbursement plan that has been adopted.
The reserve plan would have defined the state's obligations clearly, and would have
furnished to the whole system the security that now underlies the teachers contri-
butions. It should be mentioned, however, that the retirement board is watching the
development of the system carefully, is accumulating valuable information, and has
the constant advice of an actuary.

1 Report of the Commission on Old Age Pensions, Annuities and Insurance, House No. 1400. Boston, 1910. Report
of the Commission on Pensions, House No. 2450. Boston, 1914.

THE PRESENT STATUS OF TEACHERS PENSIONS 29

The Pennsylvania Plan

The Pennsylvania system, passed in 1917 but not effective until 1919, is an exam-
ple of the second group, because it represents the tendency to establish funds of state-
wide scope and because it has not been affected by some of the local problems that
influenced the drafting of the New York City bill passed in 1917. The bill contains
many of the features of the New York City pension scheme, including actuarial val-
uations, in addition to one already made, in 1919, 1921, 1924, and every fifth year
thereafter. Membership is to be optional for teachers in service at the time of the
establishment of the system. Retirement will be permitted only on the basis of age or
disability. The fund will be accumulated wholly on the reserve plan. The teachers con-
tributions will be determined according to age, sex, mortality tables, and interest
rates, but teachers will have the option of not paying more than five per cent of sal-
ary each year, and the maximum salary from which deductions will be made will be
$2000. Teachers in service at the establishment of the fund will be expected to pay
contributions only for that part of their service following the establishment, and the
state will meet the cost of the accrued liabilities or the allowance dependent on prior
service.

In general it is intended that a teacher shall retire on request at the age of sixty-
two and compulsorily at the age of seventy on an allowance equal approximately
to half salary, which will be made up of an annuity purchased with the accumula-
tions of the teachers contributions and a state annuity of one one-hundred-sixtieth
of final salary for each year of service. The method of calculating the state's share is
open to the objection that a teacher is not in a position to know what pension he may
expect until he has retired, and to the danger that the system may be exposed to the
not unknown abuse of sudden advances in the final salary which is the basis for the
granting of pensions. On retirement teachers have the choice of a number of options :
(a) to receive their allowances in monthly instalments; or (b) to receive reduced pay-
ments with the provision that any sums remaining at death shall be paid to heirs or
assigns; or (c) to receive reduced payments with payments to a designated beneficiary
thru life; or (d) to receive such other form of actuarial equivalent as may be approved
by the Retirement Board. Disability allowances will be granted after ten years of ser-
vice, and will be equal to at least thirty per cent of final salary, rising to a maximum
of eight-ninths of the amount of the allowance which would have been due, had the
teacher been able to continue in service until the age of retirement. The disability
provision is well protected and requires frequent physical examinations. If a teacher
retired on the basis of disability should recover sufficiently to pursue some gainful
occupation, the amount of the allowance may be reduced by the amount thus earned.
Refunds of total contributions are provided for with interest compounded at four
per cent.

It is estimated that the present value of the benefits that would accrue to the

30 PENSIONS FOR PUBLIC SCHOOL TEACHERS

42,727 teachers now in service would amount to $60,587,657, of which $22,793,664
would be contributed by the teachers and $37,793,993 by the employers. To accu-
mulate the employers share would require the annual appropriation of a sum equal to
5.6 per cent of the payroll for teachers now in service, or about $1,500,000 annually,
and to 2.75 per cent for future entrants, beginning the first year with about $25,000.
The act does not apply to those school systems that already have a pension plan
in force unless two-thirds of the teachers petition to join the state system. While the
state will administer the fund thru the Retirement Board of seven members, — the
Superintendent of Public Instruction, the State Treasurer, one member appointed by
the governor, three members elected by the teachers, and one member elected by the
board, — and will guarantee the financial soundness of the fund, the act provides that
the state shall be reimbursed by the employers of the teachers throughout the state
to the extent of one-half of the amount paid by it to meet the future costs of the
pensions. The intention of this provision is clear; it is an effort on the one hand to
interest the local employer in the welfare of teachers, and on the other to distribute
the cost. But however laudable these purposes may be, the principle is open to sev-
eral objections, of which the strongest is that since the act provides that the state
may reimburse itself out of money due to local education authorities for school pur-
poses, the school expenditures may be crippled to that extent. If the state desired
to share the cost of the pensions, this should not have been done at the expense of
the schools. The burden of the cost may tend to discourage local authorities from
raising salaries, or lead to the employment of only low-salaried teachers, and to this
extent the migration of good teachers may be checked. A state pension system, state
maintained in reality and not in name only, would result in putting into practice a
principle that is beginning to be established, that teachers are servants of the state;
it would tend to consolidate the profession and break down the rigid and artificial
barriers between rural and city school teachers; and, finally, it would contribute
toward a general raising of standards based on a community of professional interests
and a recognition of community service.

SUGGESTED SYSTEM OF RETIRING ALLOWANCES

FOR TEACHERS IN THE PUBLIC SCHOOLS
OF THE STATE OF VERMONT

The Suggested System

The following system of retiring allowances embodies the advantages
and avoids the dangers that are discussed elsewhere in this Bulletin. It
is much simpler than any system now in existence. Each teacher may
have a formal contract. It is based upon exact information concerning
all of the teachers that it is designed to protect. Such information, altho
essential to the soundness of any pension system, has never before been
collected for any state. In making it available for the present study, the
Commissioner of Education for Vermont, Dr. JMilo B. Hillegas, and the
teachers of the state have performed a national service. Altho adapted
to educational conditions in the State of Vermont, it is believed that
this system can be easily adjusted to the conditions in any other state.

I. Administration

1. A Teachers Pension Board of five members:

two elected by the contributing teachers for terms of three

years,
two representing the state (probably the Treasurer and the

Commissioner of Insurance),
the Commissioner of Education.

2. Cost of Administration :

To be appropriated in advance by the state at each meeting
of the legislature, in accordance with a budget presented
by the Board.

II. Membership

1. Compulsory for all teachers entering the service after the in-

auguration of the system ;

2. Optional for those already in service, if the option is exercised

within one year from the inauguration of the system.

32 RETIRING ALLOWANCES FOR TEACHERS

III. Retirement

1. On the basis of Age:

Optional at 60 or later for women,
at 65 or later for men;

After 30 years of service,

20 of this in the state;
Compulsory for all at 70.

Allowance : The sums contributed annually by the teacher
and the state, accumulated at compound interest of at least
4 per cent, applied at the time of retirement to purchase
annuities on the basis of McClintock's Table of Mortal-
ity Among Annuitants and 3 J per cent interest. The
teacher may, if he or she desires, choose at retirement:

(1) an annuity covering his or her life alone, or

(2) one guaranteeing also the return of the contributions

remaining after his or her death, or

(3) an annuity for life followed by a life pension for his

widow.

2. On the basis of Disability:

After 6 years of service in the state,

on the approval of the Board, after certification of total
inability to teach, by the physicians of the Board and of
the teacher;

An annuity based upon the sums accumulated on the basis
of McClintock's Table of Mortality Among Annuitants
and 3j per cent interest, with an additional annual pay-
ment from the state sufficient to make the total annual
pension equal to one-half of the average annual salary
throughout the teacher's entire period of active service
in the state. If, after retirement, the teacher should die
before receiving in the form of an annuity all of the accu-
mulations up to the time of his disability from his own
and the state's annual contributions on his account, the
balance will be paid to his family;

Allowance continued during agreement as to the teacher's

IN THE PUBLIC SCHOOLS OF VERMONT 33

total disability, by the Board, its own and the teachers
physicians, after annual medical examinations.
The cost to the state of its share of these allowances cannot
be estimated exactly until there is a larger accumulation
of experience with regard to the disability of teachers. In
other systems the cost of retirements on the basis of dis-
ability has been about one-tenth of those on the basis of
age.

IV. Retirement of Teachers now in Service

1. Teachers who are under forty-five when they enter the sys-

tem will retire on the basis of the accumulations of their
contributions and those of the state for them, as in the case
of teachers who begin to contribute when they enter the
service.

2. Teachers who are forty -five or over when they enter the sys-

tem will receive, in addition to the allowance based upon
the accumulations as in 1, an annual payment from the state
sufficient to make the total annual pension equal to one-
half the average annual salary throughout the teacher's
entire period of active service in the state, as in the case of
teachers who retire on the basis of disability.

The maximum cost to the state of these extra payments for
teachers who are forty-five or over on entering the sys-
tem, if the payments are made after the retirement of the
teacher, will be from about $5000 a year at the beginning
of the system to about $35,000 a year after fifteen years,
from which point it will decrease steadily until it disap-
pears in about thirty or forty years thereafter. If the pay-
ments of the state are made, like those of the teachers,
annually, in advance, they will begin at about $60,000 a
year, and decrease steadily until they disappear in about
twenty years, their total being only about two-thirds as
great/These estimates are based upon McClintock's Table
of Mortality Among Annuitants, and the supposition that
all teachers will retire at the minimum ages on allowances

34 RETIRING ALLOWANCES FOR TEACHERS

averaging one-half of their present salaries. (See Table
III, page 39.) Both of these assumptions are conservative.

V. Contributions

1. Required or optional:

A. Required of all teachers entering the service after the plan

is adopted:

B. Optional for teachers in service when the plan is adopted,

if they exercise the option within one year from the in-
auguration of the system :

2. Amount:

A. By teachers annually, —

Five per cent of their current annual salaries, with a

minimum of $16;
Up to any sum the teacher cares to contribute.

B. By the state annually, —

Equal to the payment required of the teacher and paid
into the fund at the same time, with a maximum of
5 per cent of the teacher's salary in the year of pay-
ment and a minimum of $16.
The cost to the state of its share of these allowances will
begin, at the inauguration of the system, at about $6000
a year, — that is, $16 for each of the 375 new teachers —
and increase to about $67,000 a year, — 5 per cent of
the present salaries of the present number of teachers.
This sum will increase slowly as the size and the sala-
ries of the teaching staff increase, but it will never be
more than approximately 5 per cent of the total pay-
ments for salaries.
Probably one-half of these payments will return to the
state, because of the early death or withdrawal of teach-
ers from service.

VI. Accumulations

To be credited, in individual accounts, with compound interest,
a rate of at least 4 per cent per annum being guaranteed by
the state.

IN THE PUBLIC SCHOOLS OF VERMONT 35

Roughly, the contribution of a dollar a year begun at the age
of 20 or 25 will yield a man a dollar a month for life, begin-
ning 40 years later. Annuities for women cost about a fourth
more.

The exact accumulation at 4 per cent compound interest of any
sum contributed annually, beginning at any age from 20 to 45;
the exact annuity for life that any accumulation will provide,
and the exact cost of any desired annuity according to Mc-
Clintock's Table of Mortality Among Annuitants and 3j per
cent interest, beginning at any age from 60 to 70, are given in
Tables I and II on page 38.

VII. Return of Contributions

1. Of the teacher:

A. In case of

resignation,

dismissal, or

death before retirement, —

All of the teacher's contributions with compound in-
terest at 3j per cent will be returned to the teacher
or to his or her family.

B. In case of

early death after retirement, —

If, upon retirement, the teacher has chosen this form
of annuity, the unexpended balance of the teacher's
accumulation will be paid in instalments to his or
her family.

2. Of the state :

A. In case of a teacher's
death,

withdrawal, or
dismissal

After the completion of six years of service in the state,
the state's contributions on his or her account, with
their accumulations at 3j per cent, will be returned
to the teacher or to his or her family.

36 RETIRING ALLOWANCES FOR TEACHERS

B. In case of such
death,

withdrawal, or
dismissal

Before the completion of six years of service in the
state, the state's contributions on his or her account,
with their accumulations, will be placed in the Re-
serve Fund, for the general purposes of the system.

VIII. Accounting

The system shall be audited annually, and a detailed report of
all of its activities shall be presented to each meeting of the
legislature.

IX. Actuarial Valuations

The system shall be studied actuarially, preferably by a differ-
ent actuary, at least every three years.

The Board shall have power to change the scale of contribu-
tions, in accordance with actuarial experience, for teachers
entering into the system thereafter.

X. Adjustment to Present System

The moneys of the Vermont State Teachers' Retirement Fund
Association shall be placed in the new system, to be used
only for the benefit of the teachers for whom they were pro-
vided.

XI. Reserve Fund

1. Gifts and receipts from any sources other than those already

mentioned ;

2. Returns to the state of its contributions on account of

early deaths or

withdrawals from the service;

3. Balances that may accrue because of

conservative interest, or
mortality rates, or
other causes;

IN THE PUBLIC SCHOOLS OF VERMONT 37

4. And any other savings,

shall be placed in a Reserve Fund,

to be kept in part, according to the judgment of the

Board, for contingencies, and
to be used in part, according to the judgment of the
Board, for
administration,
accrued liabilities, or
any of the other purposes of the pension system.

XII. Change of Rules

Any of these rules and regulations may be changed by the
Board in the interests of the whole body of teachers;
Such changes, however, shall affect only the teachers who
enter the system after their adoption, or other teachers
who may prefer them to the earlier rules.
The entire contract with each teacher shall be carried out on
the basis of the rules and regulations in force at the time of
that teacher's entrance to the system, unless he may agree
formally with the Board to come under later rules.

Statistical Basis

Of the tables which follow, I and II were furnished by Samuel S. Hall,
Associate Actuary of the Mutual Life Insurance Company of New
York, who also approved Table III. Tables III to XV, inclusive, were
prepared by the authors of this Bulletin, from information furnished
by the teachers of Vermont, thru their Commissioner of Education. The
circles and lines on the tables indicate the representative, median expe-
rience.

RETIRING ALLOWANCES FOR TEACHERS

TABLE I

Accumulations of $1 per annum in Advance, from Entry to Ages indicated,

at 4 per cent compound interest

Age at

Accumulations to Age

Begin-

ning

$98.8265

$103.8196

$109.0124

$114.4129

$120.0294

$125.8706

$131.9464

$133.2632

$144.8337

$151.6671

$158.7737

94.0255

98.8265

103.8196

109.0124

114.4129

120.0294

125.8706

131.9454

138.2632

144.8337

151.6671

89.4091

94.0255

98.8265

103.8196

109.0124

114.4129

120.0294

125.8706

131.9454

138.2632

144.8337

84.9703

89.4091

94.0256

98.8265

103.8196

109.0124

114.4129

120.0294

125.8706

131.9454

138.2632

80.7022

84.9703

89.4091

94.0256

98.8265

103.8196

109.0124

114.4129

120.0294

125.8706

131.9454

76.5983

80.7022

84.9703

89.4091

94.0255

98.8265

103.8196

109.0124

114.4129

120.0294

125.8706

72.6522

76.5983

80.7022

84.9703

89.4091

94.0255

98.8265

103.8196

109.0124

114.4129

120.0294

68.8579

72.6622

76.5983

80.7022

84.9703

89.4091

94.0255

98.8265

103.8196

109.0124

114.4129

65.2095

68.8579

72.6522

76.5983

80.7022

84.9703

89.4091

94.0255

98.8265

103.8196

109.0124

61.7015

65.2095

68.8579

72.6622

76.5983

80.7022

84.9703

89.4091

94.0255

98.8265

103.8196

58.3285

61.7015

65.2095

68.8579

72.6522

76.5983

80.7022

84.9703

89.4091

94.0255

98.8265

55.0849

68.3283

61.7015

65.2095

68.8579

72.6522

76.5983

80.7022

84.9703

89.4091

94.0255

61.9663

65.0849

68.3283

61.7015

66.2095

68.8579

72.6622

76.5983

80.7022

84.9703

89.4091

48.9676

51.9663

55.0849

58.3283

61.7015

65.2095

68.8679

72.6522

76.5983

80.7022

84.9703

46.0842

48.9676

51.9663

55.0849

58.3283

61.7015

65.2095

68.8579

72.6522

76.5983

80.7022

43.3117

46.0842

48.9676

61.9663

55.0849

58.3283

61.7015

65.2096

68.8579

72.6522

76.5983

40.6459

43.3117

46.0842

48.9676

61.9663

55.0849

58.3283

61.7015

65.2095

68.8579

72.6522

38.0826

40.6459

43.3117

46.0842

48.9676

51.9663

65.0849

58.3283

61.7015

65.2095

68.8579

35.6179

38.0826

40.6459

43.3117

46.0842

48.9676

51.9663

55.0849

58.3283

61.7015

65.2095

33.2480

35.6179

38.0826

40.6459

43.3117

46.0842

48.9676

51.9663

55.0849

58.3283

61.7015

30.9692

33.2480

35.6179

38.0826

40.6459

43.3117

46.0842

48.9676

61.9663

55.0849

68.3283

28.7781

30.9692

33.2480

35.6179

38.0826

40.6459

43.3117

46.0842

48.9676

51.9063

55.0849

26.6712

28.7781

30.9692

33.2480

35.6179

38.0826

40.6459

43.3117

46.0842

48.9676

61.9663

24.6454

26.6712

28.7781

30.9692

33.2480

35.6179

38.0826

40.6459

43.3117

46.0842

48.9676

22.6976

24.6464

26.6712

28.7781

80.9692

33.2480

35.6179

38.0826

40.6459

43.8117

46.0842

20.8245

22.6975

24.6464

26.6712

28.7781

30.9692

33.2480

35.6179

38.0826

40.6459

43.3117

TABLE II
Options with regard to Annuities

ACCORDING TO MCCLINTOCk's TABLE OF MORTALITY AMONG ANNUITANTS

AND 3|- PER CENT INTEREST

Option (1)

Option (2)

Option (3)

Life Annuity, income to cease at
annuitant's death

Guaranteed Life Annuity, amount of
excess, if any, of accumulations over
income paid, to be paid in instal-
ments to annuitant's estate

Life income to teacher with
50% thereof to widow during
her lifetime after his death,
income to cease with death
of last survivor

Men

Women

Men

Women

Age

Value of
Life '

Income
of$l

Income
Pur-
chased

by $1000

Value of
Life

Income
of$l

Income
Pur-
chased
by $1000

Value of

Life
Income

of p.

Income

Pur-
chased
by $1000

Value of

Life
Income

of$l

Income
Pur-
chased
by $1000

Value based on

Income of $1 to

Husband

Income Pur-
chased by $1000

$12.2198

$81.83

$13.8856

$72.02

11.8630

84.30

13.5749

73.66

11.5045

86.93

13.2605

75.41

11.1450

89.73

12.9432

77.26

10.7850

92.72

12.6284

79.19

$9.0986

$109.91

10.4245

95.92

$11.1774

$89.47

12.3100

81.23

$11.4433

$87.39

8.7617

114.13

10.0647

99.35

10.8660

92.03

11.9886

83.41

11.0842

90.22

8.4269

118.67

9.7060

103.03

10.5581

94.71

11.6722

85.67

10.7244

93.25

8.0946

123.55

9.3489

106.96

10.2503

97.56

11.3528

88.09

10.3645

96.48

7.7654

128.78

8.9943

111.19

9.9306

100.70

11.0303

90.66

10.0050

99.95

7.4400

13441

8.6424

115.71

9.6380

103.76

10.7146

93.33

9.6466

103.66

IN THE PUBLIC SCHOOLS OF VERMONT

TABLE III

Additional Cost to the State for Teachers now 45 or Over
ox the reserve basis and on the cash disbursement basis

Age

Number

Average
Salaries

Teachers'

and
State's 5%

Number
of Pay-
ments

Allowance

from,
Accumu-
lation

Pension
of Half
Salary

Part of

Pension

paid by

State

Total Cost to State

_ Cash Dis-

ReJerve bursement

Basis Basis

Men Retir-
ing at 66

46 to 49

60 to 54

55 to 59

60 to 69

70 to 75

17
9
8
2
1

$1550

1650

1750

525

$155.00
166.00

175.00

$464.37
313.59
184.34

$775.00
825.00
875.00
414.60 *
414.60 '

$320.63
511.41
690.66
414.60
414.50

$30,623.68

30,480.20

44,583.52

8,871.00

3,607.00

$39,116.86

40,912.80

65,262.80

9,749.04

3,237.24

$118,165.40

■Women

Retiring

at 60

45 to 49

50 to 54

55 to 59

60 to 69

70 to 75

Returned to State 35,031.64

,133.86 $148,268.74

$475
475
525
425
725

$47.50
47.50
62.50

$67.21

$237.50

$170.29

$129,048.75

$155,023.82

36.43

237.50

201.07

109,843.48

120,642.00

14.21

262.60

248.29

113,087.41

101,510.61

—

212.50

35,360.00

41,016.70

—

362.60

9,385.00

6,383.52

$396,724.64

Returned to State

41,715.62

$356,009.02

$424,576.65

Total $438,142.88 $672,845.39

TABLE IV

Employees Subject to Retirement Law
as of december 1, 1916

Class of Employees

Men

Women

Total

Total
Annual
Salaries

Average
Annual
Salary

Superintendents

Principals

Teachers

173

2600

2773

$102,569

53,488

1,188,476

$1,627.00

1,193.00

408.39

Total

268

2615

2883

Total Annual Salaries
Average Annual Salaries

$220,978
$829

$1,123,555
$429

$1,344,633

$466

1 Median salaries.

40 RETIRING ALLOWANCES FOR TEACHERS

TABLE V
Distribution of Men Teachers by Year of Birth

1899

1883

1898

1882

1897

1881

1896

1880

1895

1879

1894

1878

1893

1877

1892

1876

1891

1875

1890

1874

1889

1873

1888

1872

1887

1871

1886

12 Median

1870

1885

1869

1884

1868

1867

1866

1865

1864

1863

1862

1861

1860

1859

1858

1857

1856

1855

1854

1853

1840

268

TABLE VI
Distribution of Women Teachers by Year of Birth

1899

1882

1865

1898

1881

1864

1897

171

1880

1863

1896

202

1879

1862

1895

240

1878

1861

1894

222

1877

1860

1893

202

1876

1859

1892

195 Median

1875

1858

1891

125

1874

1857

1890

117

1873

1856

1889

1872

1855

1888

1871

1854

1887

1870

1853

1886

1869

1852

1885

1868

1850

1884

1867

1847

1883

1866

No record

2611

IN THE PUBLIC SCHOOLS OF VERMONT

TABLE VII
Men Teachers — Active Foece — Classified by Age and Service

Total

Length of Service

Present Age

Less

than

5 years

5 and

less

than 10

10 to Ik

15 to 19

SO to 2k

25 to 29

30 to Sk

35 and
over

70 to 75
60 to 69
55 to 59
50 to 54
45 to 49
40 to 44
35 to 39
30 to 34
25 to 29
20 to 24
17 to 19

2
8

17
28
27
47
67
55
7

1
12

(t)

3
6

21
1

4
5

I
1

2
1

2
127

(w)

9
1

1
1

-®

Total

268

121

TABLE VIII
Women Teachers — Active Force — Classified by Age and Service

Present Age

Total

Length of Service

Less

than

6 years

5 and

less

than 10

10 to Ik

15 to 19

20 to 2k

25 to 29

30 to Sk

35 and
over

65 to 70

—

60 to 64

—

(T)

55 to 59

—

fsf

50 to 54

—

J\£f

45 to 49

j(§r

40 to 44

163

©"

35 to 39

188

/so)

30 to 34

266

Jwwf

25 to 29

484

155

(286)

20 to 24

1061

(973f

17 to 19

263

(263)

Total

2610

1439

484

296

183

108

RETIRING ALLOWANCES FOR TEACHERS

TABLE IX
Distribution of Men Teachers by Age and Salary

Present Age

Total

Less
than

$250

$260

$299

$300

$349

$350

$399

$400

$449

$450

$499

$500

$549

$650

$599

$600

$649

$650

$699

$700

$749

$760

$799

$800

$849

$850

$899

70 and over

65 to 69

®~

60 to 64
65 to 59

60 to 54

45 to 49

—

40 to 44

36 to 39

30 to 34

26 to 29

O
0

20 to 24

-(o)~

17 to 19

(5 V

Total

106

Q
0

TABLE X
Distribution of Women Teachers by Age and Salary

Present Age

Total

Less
than
$200

$200

$249

$250

$299

$300

$349

$360

$399

$400

$449

$450

$499

$600
to

$549

$550

$599

$600
to
$649

$650
to

$699

65 to 70

1
12

60 to 64

(sjL.

55 to 69

^nT)

60 to 64

45 to 49

40 to 44

138

36 to 39

166

30 to 34

246

25 to 29

452

115

(ll9)

20 to 24

1048

187

(374)

199

17 to 19

255

(Qj

Total

2452

150

403

680

537

234

174

129

IN THE PUBLIC SCHOOLS OF VERMONT

TABLE IX (Continued)
Distribution of Men Teachers by Age and Salary

Present Age

Total

$900

$949

$960

$999

$1000

to
$1099

$1100

to
$1199

$1200

to
$1299

$1300

to
$1399

$1400
to

$1499

$1500

to
$1599

$1600

to
$1699

$1700

to
$1799

$1800

to
$1899

$1900

to
$1999

$2000
and
over

No
Rec-
ord

70 and over

1
1

—

CD"

= —

65 to 69

"~©

CO to 64

55 to 59

' -

50 to 54

Jzf

45 to 49

40 to 44

(g)

35 to 39

(t)

30 to 34

__$__

— CD"

"T~

25 to 29

(D~

— 2

20 to 24

17 to 19

Total

102

TABLE X (Continued)
Distribution of Women Teachers by Age and Salary

Present Age

Total

$700

$749

$760

$799

$800

$849

$850

$899

$900

$949

$960

$999

$1000

to
$1099

$1100

to
$1199

S1200
and
over

No
Record

65 to 70

60 to 64

55 to 59

50 to 54

45 to 49

40 to 44

35 to 39

30 to 34

25 to 29

20 to 24

17 to 19

Total

159

RETIRING ALLOWANCES FOR TEACHERS

TABLE XI
Distribution of Men Teachers by Service and Salary

Length of Service

Total

Less

than
$250

$260

to
$299

$300

$349

$350

$399

$400

$449

$450

$499

$500

$549

$660

$699

$600

$649

$660

$699

$700

$749

$750
to

$799

$800
to

$849

$850

$899

35 and over

SO to 34

25 to 29

20 to 24

15 to 19

10 to 14

5 to 9

Less than 5 years

©~

Total

106

TABLE XII
Distribution of Women Teachers by Service and Salary

Length of Service

Total

Less
than
$250

$250
to

$299

$300

$349

$350

$399

$400

$449

$450
to

$499

$500
to

$549

$550

$599

$600

$649

$650

$699

35 and over

(EX

30 to 34

25 to 29

(D"

20 to 24

15 to 19

1G2

10 to 14

271

(jiY^

5 to 9

457

125

^@)

Less than 5 years

1396

117

302

©"

238

Total

2451

150

403

677

541

233

174

129

IN THE PUBLIC SCHOOLS OF VERMONT

TABLE XI (Continued)
Distribution of Men Teachers by Service and Salary

Length of Service

Total

$900

$949

$950

$999

$1000

to
$1099

$1100

to
$1199

$1200

to
$1299

$1300

to
$1399

$1400

to
$1499

$1500

to
$1599

$1600

to
$1699

$1700

to
$1799

$1800

to
$1899

$1900

to
$1999

$2000

and

over

No
Rec-
ord

35 and over

1
2

(D~

;KD

30 to 34

25 to 29

(2)-

20 to 24

2-C

_) 5

15 to 19

®"

■"""■"2""

10 to 14

^_4_

— ( ' )

5 to 9

7 .

-dy~

■ if

Less than 5 years

Total

162

TABLE XII (Continued)
Distribution of Women Teachers by Service and Salary

Length of Service

Total

$700

$749

$750

$799

$800

$849

$850

$899

$900

to
$949

$950

$999

$1000

to
$1099

$1100

to
$1199

$1200
and
over

No
Record

35 and over
30 to 34
25 to 29
20 to 24
15 to 19
10 to 14
5 to 9
Less than 5 years

7
9
14
13
24
25
27
41

2
3
3
6
9
10

2
4
1
2
4
3
5
6

1
1
2
3
3
1

5
2
2
1

1
1
1
1
4
2
1
1

1
1

1
6
3

5
4

1
4
1

1
2

2
21

Total

160

RETIRING ALLOWANCES FOR TEACHERS

TABLE XIII
Service of Men Teachers outside the State (110)

Present
Age

1 year or
less

1 and less
than 2

2toh

Less than
5 years

5 to 9

10 to lh

15 to 19

20 to 2k

25 or over

Total

20 to 24

25 to 29

30 to 34

35 to 39

40 to 44

45 to 49

50 to 54

55 to 59

60 to 64

65 to 70

110

TABLE XIV
Service of Women Teachers outside the State (354)

Present
Age

1 year or
less

1 and less
than 2

2toU

Less than
5 years

5 to 9

10 to IK

15 to 19

20 to 2h

25 or over

Total

17 to 19

20 to 24

25 to 29

30 to 34

35 to 39

40 to 44

45 to 49

50 to 54

55 to 59

60 to 64

65 to 70

112

244

354

IN THE PUBLIC SCHOOLS OF VERMONT 47

TABLE XV

Withdrawals from Service

1911-16

Men

Marriage

Disability Death

Other Causes

Total

1911

1912

1913

1914

1915

1916

Plus 2 incomplete

records

Women

1911

1912

3 2

1913

5 2

105

1914

1915

9 3

115

1916

14 1

169

Plus 9 incoi

oplete

records

580

Men Women Total Withdrawals

1911 265 3021 3286 32

1912 256 2735 2991 71

1913 227 2852 3079 110

1914 215 2885 3100 102

1915 235 2797 3032 123

1916 228 2764 2992 174

48 RETIRING ALLOWANCES FOR TEACHERS

Theory and Principles

Retirement Board

A small board is recommended in order to secure administrative efficiency and a sound
system of centralized responsibility. The state is represented by those executive officers
who have charge of finance and insurance ; the commissioner of education is included
as representing both the state and the teachers. In some states it may be desired to
include also the attorney-general and a third representative of the teachers. In ac-
cordance with generally accepted principles it is advisable that the representatives
of the teachers should be elected at large to serve for periods that are long enough to
give them familiarity with the problems that they are to handle; a term of at least
three years would probably be a satisfactory period. The terms of service should over-
lap in order to secure continuity of policy and the necessary knowledge of details on
the part of the majority of the members at any one time. It is not desirable to pay
members of retirement boards more than will compensate them for any loss of income
incurred thru attending to the business of the board.

The chief function of the board is to frame by-laws and regulations to carry out
the purposes of the act, and to supervise, subject to the necessary expert advice, the
management of the fund. In the majority of pension systems the boards have been
given discretionary powers to make changes, as for example in prorating pensions, that
affect the interests of teachers who are already in the service. Such discretionary powers
are too wide. In order to maintain the confidence of participants in the system, sound
policy requires that changes either in the amount of contribution required or in the
amount of retiring allowance to be paid should be made only on the advice of actu-
aries after an investigation of the fund, and that such changes should apply only to
future entrants into the system, altho teachers already in the system may accept the
changes by formal amendment of their contracts.

The administration of a system involving such a small number of teachers as those
of Vermont does not necessitate the permanent employment of an actuary, altho the
services of a consulting actuary may be retained. An actuarial investigation at least
every three years, however, is essential for security. The sound administration of a pen-
sion system requires at the inauguration the elaboration of a careful system of records
and accounting which in themselves are an important element in securing soundness.
Of existing systems only those of Massachusetts, Connecticut, and Erie, Pennsylvania,
and the new systems of New York City and Pennsylvania, all in their infancy, have
provided for the keeping of accurate records. A system of records, organized on
the advice of an actuary, forms the basis of accurate pension reporting, for which no
good standard has yet been developed.

Membership

The principle that membership in a pension fund should be compulsory for all new

IN THE PUBLIC SCHOOLS OF VERMONT 49

teachers is now widely accepted. Compulsion in such cases does not involve any hard-
ship if it becomes generally recognized that the acceptance of the provisions of a pen-
sion act is one of the conditions of appointment. Compulsory membership in a pen-
sion fund is essential not merely in order to afford every teacher some protection
against dependency in old age, but it is only on this basis that school authorities can
relieve the system of teachers who become inefficient, without imposing undue hard-
ships. At the same time a well-organized pension plan tends to encourage thrift, and
may perform the same function as a savings bank in which the teachers deposit not
only the contributions required under the plan but any sums above this that they
desire. Membership cannot be made compulsory for teachers already in service because
many of them may have made arrangements for protection against life contingen-
cies, or may have incurred other obligations that would make the requirement of a
contribution to another fund impossible, or they may be so old that the necessary
actuarial contributions required from them would be too burdensome. It is, however,
advisable to afford these teachers such inducements as are possible to become mem-
bers of the system for the same reasons that are given above. These may properly take
the form of meeting in whole or in part the accrued liabilities by appropriations from
the state treasury.

Teachers in service at the time of the passage of a pension act, provided that special
arrangements are made for them, may be required to declare within one year after its
establishment, whether they will become members of the pension system. This require-
ment leaves the teachers ample time for a consideration of all the conditions involved
and enables the authorities to obtain an early estimate of the state's future obliga-
tions. A longer postponement would involve either increased assessments or smaller
pensions. It should be understood that teachers who give a declaration in writing
of their intention not to avail themselves of the provision of the act have no claim,
sentimental or otherwise, on it either for disability or retiring allowances, since the
one aim of the plan is to avoid the complications of a discretionary measure and to
ensure stability by careful actuarial calculations of the future cost.

Retirement

The proposed measure provides for the retirement of teachers on the combined basis
of age and service. Most existing plans that provide for retirement on the basis of ser-
vice alone are in danger of financial instability. Under these systems teachers may
spend from one-third to one-half of their adult lives in retirement, or may retire at
the time of their greatest efficiency, since such systems enable a teacher to retire at as
early an age as forty-five or fifty. Measures of this kind are not only opposed to the
interests of society, but they are almost impossibly expensive, and since the rates of
contribution in most systems have not as a rule been actuarially calculated to provide
for such early retirement, the funds tend to be diminished very rapidly, with the re-
sulting bankruptcy of the system within a few years. Retirement on the basis of age

50 RETIRING ALLOWANCES FOR TEACHERS

alone is inequitable, since the employer's contributions to the pension fund are made
in recognition of service rendered, in order to furnish protection for the employee in
old age. It is desirable to place the age of voluntary retirement lower for women than
for men ; the present plan places the age of voluntary retirement for women at 60
and at 65 for men. It is essential to remember, however, that since actuarial statistics
show that women are longer-lived than men, the same accumulations will purchase
lower annuities for them than for men, or, to put it in another way, the same annuity
will cost more for women than for men. The ages of 60 and 65 are the ages for volun-
tary retirement ; it is proposed that no teacher be permitted to remain in service after
the age of 70. Since the pension protection is provided, such compulsory retirement
imposes no hardship. The existence of the pension protection also affords a justifica-
tion for the compulsory retirement by a school committee of a teacher at the age
of 60 or 65, if by his retention the efficiency of the school concerned appears to be
impaired. Thirty years has been taken as the service qualification in the present plan,
of which twenty years must be in the State of Vermont. Service outside Vermont is
recognized on the principle that failure to include such service may tend to discour-
age the mobility of the profession.

Retiring Allowance

The amount of retiring allowances for future teachers and teachers below the age
of forty-five who are in service at the time of the introduction of the pension plan
will be determined by the amount contributed annually by and on behalf of each
teacher, by the rate of interest earned or guaranteed by the fund, and by the rates
of mortality ; in other words, the retiring allowance will be the annual sum that can
be purchased by the accumulations standing to a teacher's credit at the time of re-
tirement. Such sums can be predicted with scientific accuracy by the actuaries, and
the teacher is all the time in a position to know exactly how much retiring allowance
mav be expected in return for any given contribution, or how much must be con-
tributed in order to secure any desired allowance. Under this system teachers, if
they so desire, may obtain contracts setting forth these expectations. McClintock's
Table of Mortality Among Annuitants, recommended here, with interest at 3| per
cent, is the table most generally required by the state laws in calculating annuities.
The experience of the system may result in tables representing the expectations of
teachers even more closely. This plan avoids the complications that arise in many
svstems which base the retiring allowance on the salary received by the teachers at
the time of retirement or the average salary for a few years preceding retirement, or
by the payment of a flat rate, or by calculating it on the basis of service. The course
of salaries cannot be predicted over a period of twenty-five, thirty, or more years, and
to calculate a pension on such a basis introduces an element of guesswork, since nobody
can foretell whether the accumulation of the annual contributions paid by the teacher
and the employer will or will not yield a pension related to the salary at the time of

IN THE PUBLIC SCHOOLS OF VERMONT 51

retirement. The chief objection to the flat rate — that is, the same pension to every
teacher — is that its cost is more burdensome on the low-salaried teacher than on the
teacher enjoying a high salary, and on the younger rather than on the older teacher,
assuming the annual contribution required to be the same for all; further, it has gen-
erally failed to serve as an inducement to the high-salaried teacher to retire before the
compulsory age for retirement is reached. The determination of a pension on the basis
of a certain sum for each year of service is open to the same objections as the flat
rate, and has the further defect that the pension proposed under this plan bears no
relation either to salary or to contribution.

Salary has, however, been taken into account under the present scheme in so far as
it is expected that each teacher will contribute toward a retiring allowance that will
enable him to continue on somewhat the same standard of living in retirement as in
active service. In order to enable teachers to make such arrangements as may best suit
their circumstances, the plan gives them the opportunity of increasing their contri-
butions as their salaries increase, and of selecting one of three options at the time of
their retirement.

Disability Allowances

The administration of disability allowances has been surrounded hitherto with con-
siderable difficulty. The appeal of sentiment in favor of the teacher who is incapaci-
tated for further work on account of mental or physical disability has been almost
as great as in the case of incapacity due to old age. One cause of the difficulty is that
as yet there are but meagre statistics available to indicate the incidence of complete
disability among teachers as a class. The probability is that it is not great, but hitherto
disability claims have usually been presented and accepted on the testimony of the
applicant's own physician without further check. It is here proposed that disability
allowances be granted only on the certification of both the physician attending the
teacher and of physicians appointed by the Board of Retirement. In order to guard
against the continued payment of an allowance in cases where disability has been
overcome, it is recommended that a teacher who is granted a disability allowance be
reexamined by his own and the Board's physicians once each year. This implies the
reen trance into service of the teacher whose health is restored.

The great variety of practice in this field appears in the number of years of service
that are required as a basis for the granting of a disability allowance and in the amount
of the allowance in different systems. The service requirement varies, in different sys-
tems, from two to thirty-five years, and the amount of the disability allowance varies
from a sum determined at the discretion of the Board concerned to a sum bearing
the same proportion to a regular retiring allowance as do the years of service before
disability to the total period of service required for retirement.

Until such time as a medical examination is required for entrance upon teaching,
it would seem advisable to establish the principle that the minimum length of service

52 RETIRING ALLOWANCES FOR TEACHERS

after which a teacher may become eligible to a disability allowance should be that
which is generally recognized as qualifying for permanent appointment. In the case
of Vermont this period tends to be six years; accordingly the state will permit teachers
who are totally incapacitated for further teaching to retire on a disability allowance
after this period. Until more information on the subject of teachers disability has been
accumulated, it would be advisable to determine the amount of the disability allow-
ance so far as possible on the same basis as the retiring allowance, that is, the annuity
that can be purchased with the accumulations standing to the teacher's credit. Since
in the case of early disability such an annuity would be very small, the state may
properly assume the cost of the difference between this annuity and half of the teach-
er's annual average salary during the entire period of his active service in the state.

Contributions

The amounts that teachers may be expected to contribute annually are determined
most simply by the fact that they bear a definite relation toward their retiring al-
lowances. It would be inequitable to permit teachers to contribute such small sums
annually that the annuity that could be purchased with their accumulations would
hardly be sufficient to maintain life. On the other hand, it would be unjust to require
such high annual contributions that teachers would feel too great a burden on their
present expenditures. It is advisable that teachers should be required to contribute
such annual sums as will together with contributions from the state ultimately yield
an annuity that will keep them in comfort in retirement. In general, such an annuity
is equivalent to about one-half of the average salary at the time of retirement and can
be purchased with the accumulation of annual contributions equal to about 5 per cent
of salary, duplicated by the state's contributions. Since salaries in Vermont are not yet
large, a minimum contribution of $16 a year is required, even tho this be more than
5 per cent of the initial salary. Since the fund here proposed guarantees interest at 4
per cent, it may prove an encouragement to thrift to permit teachers to increase their
annual contributions up to any sum beyond the required minimum, the additional
accumulations serving to purchase higher annuities. In such cases, however, the state's
contributions would be limited to a sum equal to 5 per cent of the teachers salaries.

As a consequence of the principle that the justification of a pension system is based
as much on the requirements of public service as on the desirability of furnishing pro-
tection for teachers in their old age, it is now generally accepted that the state should
share equally with the teachers the cost of the retiring allowances, except in the case
of those teachers who are so old that the annual actuarial contributions that would
be required to purchase them a reasonable pension would be too burdensome. But for
the younger teachers and for new teachers it is desirable that the annual contribu-
tions of the state should, within the limits provided, duplicate those of the teachers
and be paid into the fund at the same time.

The requirement that the state shall make its payments on behalf of teachers at

IN THE PUBLIC SCHOOLS OF VERMONT 53

the same time as the teachers is based on the principle that this plan, known as
the reserve plan, is the cheapest and safest both for the state and the teacher. The
state might meet its obligations for pensions by annual appropriations as the needs
arise. It has been found that this method, the cash disbursement plan, while perhaps
cheap at first, becomes too burdensome and may rise as high as one-third of the
annual salary roll of active teachers. This burden may become so excessive that relief
may be sought by prorating pensions with the consequent disappointment of the
teachers expectations. Under the reserve plan, on the other hand, the cost always
remains uniform, and need not rise above 5 per cent of the cost for salaries in any
one year, and may be limited to that amount, as in the present plan. Advantage is also
taken of the interest rate, which after a few years yields very rapid accumulations.
Thus one dollar set aside each year for thirty years at 4> per cent compound interest
would become $58.32, and in forty years $98.82. A further advantage of the reserve
plan is that, if combined with the practice of keeping individual accounts for each
teacher, the accumulations necessary to purchase the allowances for a retiring teacher
are always ready to hand, and the dangers attending a system in which the funds are
pooled are absent.

Teachers who have been in service for some years before the introduction of a pen-
sion plan, and upon whom the burden of paying sufficient contributions to secure an
adequate retiring allowance would be excessive, constitute a separate problem. No
difficulty would arise if a pension system were established wholly for future entrants
or for a body of young teachers. The presence of the older teachers gives rise to the
difficulty of meeting what are known as accrued liabilities. Membership in the fund
remains optional for them for the period prescribed, but once they join, they must
contribute regularly. It is here recommended that they contribute annually the same
percentage of their salaries as other teachers in service, but that the state pay annu-
ally on their account, in addition to the ordinary duplication of the teachers contri-
butions, such sum as with the other accumulations will provide an annuity equal to
half of the average annual salary of a retiring teacher throughout his period of ser-
vice. These additional sums needed to meet the accrued liabilities make a pension sys-
tem costly for a time only; they decrease and ultimately disappear entirely. Failure to
recognize that teachers in service require a provision different from that for future
entrants has been the most frequent cause of the breakdown of pension plans.

Accumulations

Following the principle observed in savings and insurance systems, it is desirable that
the contributions of both the teachers and the state be kept in individual accounts
credited to each teacher up to the time of retirement. In most of the existing systems
all funds are credited to one account; where the funding has been inadequate this
method has resulted at first in the payment of pensions in full, then pro rata, and
finally in bankruptcy, the younger teachers in effect contributing toward the pay-

54 RETIRING ALLOWANCES FOR TEACHERS

ment of the pensions of their older colleagues instead of toward the accumulation of
a fund for themselves.

It is advisable, and in the present prospects of the investment market entirely pos-
sible, for the state to guarantee interest to the fund at 4 per cent ; any sums that may
be earned above this may be placed in a reserve fund or be employed to reduce appro-
priations.

Return of Contributions

One of the results of the merely sentimental and philanthropic character of many
pension funds has been the unwillingness to return contributions to teachers who
withdraw from service owing to resignation, dismissal, or death. A scientifically
planned system will return not only the teacher's contributions, but after a period
of service those placed to his credit by the state. It follows, since funds are kept in
individual accounts and provision for the future pensions is made on an individual
basis, that this can be done safely without curtailing the rights and expectations of
other members of the fund. Further, since the new systems are based on the savings
plan and aim partly to encourage thrift, a teacher's contributions are regarded as his
own savings and always belong to him. The state's contributions are paid to a teach-
er's credit to serve at once as a consideration for service and to meet a future contin-
gency; it is doubtful whether it can be satisfactorily argued that a teacher's right in
these payments from the state inures from the first year of service. On the basis, how-
ever, that the state's payments are regarded as deferred pay, the state's contributions
may be returned to a teacher withdrawing after a continuous service of six years, the
period necessary to qualify for permanent appointment. The total amount, therefore,
standing to the credit of a teacher who resigns, or is dismissed, or dies before retire-
ment, may be returned with interest at 3| per cent, the difference between the rate
for withdrawal and the rate for retirement being considered as some return for
the protection afforded during the period of service, and being used to pay for the
cost of administration. When such accumulations are small, it is most convenient to
return them in a lump sum. When they are considerable in amount, it may be better
to allow them to remain and accumulate until the time of retirement as the basis
of a partial annuity.

In the case of a teacher who dies after retirement before the total fund standing
to his credit has been exhausted in the payment of his retiring allowance, the un-
expended balance may be returned to his family with interest at 4 per cent, provided
that this form of option has been selected.

Actuarial Valuations

Until within the last three years few pension systems in the United States were es-
tablished with the advice and help of actuaries. They have been resorted to usually
when a fund was approaching bankruptcy. In order to establish and maintain the sta-
bility of a fund, it is essential that actuarial cooperation be secured before the or-

IN THE PUBLIC SCHOOLS OF VERMONT 55

ganization of a system and employed periodically during its existence. This is all the
more necessary at present because of the absence of special professional statistics that
tell the story of a teacher's career. Little is known about the length of service, lon-
gevity, or disability of teachers. Even if the teaching profession shows the same expe-
rience as the ordinary tables, the actuary's assistance is still necessary. It is essential,
therefore, that pension systems should be actuarially sound at their inauguration,
and that the soundness should be maintained by periodical investigations. It is es-
timated that such investigations should be conducted at least once in three years.
For most plans the permanent appointment of an actuary is unnecessary after the
initial organization has been effected and a good system of forms, records, and book-
keeping has been introduced. The latter are no less necessary than the periodical in-
vestigations, for they alone can furnish the basis for sound and accurate reports which
will serve in turn as the basis for the state's appropriations and for publicity, in itself
a strong element of stability. Annual reports based on information secured in this way
furnish the best safeguard for any particular system and an essential means of pro-
moting a more accurate and scientific knowledge of the principles that should underlie
pension systems in the future. The whole problem of pensions is not only actuarial, but
also economic, professional, and social.

Change of Rules

From time to time, as more accurate information accumulates about the teacher's needs
and wishes, or as an actuarial investigation may suggest, a change in existing rules
may appear desirable. Under most existing systems this power is left to the Board
of Retirement or to some corresponding board. Usually boards are permitted to pro-
rate the pensions of those who have already retired, or are about to retire. It is un-
just to grant such power unreservedly to any board, and the need for any such changes
is obviated by organizing the system with as much scientific accuracy as possible. The
power to change rules is essential for the adjustment of the system to future contin-
gencies, but it is fair to employ such power only as it affects the interests of teachers
joining the system subsequent to the introduction of the changes. Any alterations in
the contract existing between the pension fund and the teachers in service is permis-
sible only by formal agreement with the teachers concerned.

TABULAR STATEMENT OF

State

Date of
the Es-
tablish-
ment

Arizona

California

Colorado
Denver

Connecticut

New Haven

New London

Df.laware
Wilmington

Illinois

Chicago

Peoria

1912

1913

1909

1917

1911

1915

1893

1913

Indiana

Administration

Board

Including
Teachers'
Represen-
tatives

Expenses of
Adminis-
tration

Membership

Teachers

already in

Service

New
Teachers

Source of Funds

State, etc.

State Board of
Education

Local Boards of

School

Directors

Teachers' Re-
tirement
Board, 5 mem-
bers

BoardofRetire-
ment, 5 mem-
bers

Board of Retire-
ment, 7 mem-
bers

Board of Trus-
tees of Illinois
State Teachers
PensionandRe-
tirement Fund,
5 members

Board of Trus-
tees, 9 members

Board of Man-
agement, 9
members

2 teachers
elected by
members of
the retire-
ment asso-
ciation

1 member
elected
by the
teachers

Such sum from
the general
fund as is ne-
cessary to pay
clerical and
other expenses

2 members
of the
teaching
staff
elected

3 members
of the
teaching
staff
elected

3 elected
by the
teachers

6 members
elected by
contribu-
tors to the
fund

Optional up
to Jan. 1,
1914

Annual state
appropriations
according to
the estimates
for expenses

Compensation
of Secretary
and expenses of
members of the
Board paid out
of the fund

6 must be
elected by
active
teachers

1915

Board of Trus-
tees of the In-
diana State
Teachers' Re-
tirement Fund,
5 members

2 teachers
appointed
by the
Governor

Clerical assist- May join at
anceand actual any time on

Optional

Compul-
sory

Compul-
sory after
passage of
act

Optional
up to Sept.
1920

Optional
up to July
1, 1916

Compul-
sory

School Fund of the
State

6% of inheritance and
transfer taxes; income
and interest from in-
vestments; donations,
gifts, legacies ; state
appropriations

Special levy on school
district up to one-tenth
of a mill ; gifts and be
quests

Compul-
sory

Annual state appropri
ations

Compul-
sory

Compul
sory

Compul-
sory

Teachers' Annual
Contributions

5% of salary, not less
than $25 nor more than
$100 a year

Appropriations, gifts,
or bequests from pub-
lic or private sources :
deductions from sala-
ries for absence or ill-
ness

1% of salary during
first 10 years of ser-
vice ; 2% beyond that

Appropriations, gifts,
or bequests ; 6% of ex-
cise moneys or license
fees; an appropriation
from city fund

$1000 yearly provided
by City Board of Edu-
cation; donations, leg-
acies, bequests, gifts,
etc.; $2000 yearly from
the Council of the city

Compul-
sory

expenses of
members of the
Board paid for
out of the fund

payment of
arrearages

Compul-
sory

One-tenth of one mill
upon each dollarof the
assessed valuation of
all the taxable proper-
ty of the state coming
under the provisions of
the act ; donations and
legacies, etc.

Donations, legacies,
gifts, bequests, etc.;
the interest on taxation
for school purposes;
and from public money
up to twice the amount
of the teachers contri-
butions annually

Donations, legacies,
gifts, bequests

Gifts, devises, be-
quests, appropriations
from legislature;
money or property from
other sources; interest
on investments ; semi-
annual apportionments
from state school tui
tion tax

1% of salary

1% of salary during
first 10 years; 2% dur-
ing next 10 years ; 3%
after 20 years. Maxi-
mum of $50 in one year

$5 first 10 years ; $10
succeeding 5 years; $;
succeeding 10 years

50 cents a month during
first 5 years ; $1 a month
during next 5 years ;
$1.50 during the next
5 : $3 a month after 15
years of service

first 5 years ; $10 next
5 years ; $15 next 5
years ; $30 beyond 15
years of service

$10 first 15 years ; $20
next 1G years; $25 next
10 years; $20 up to and
including fortieth year
of service

TEACHERS PENSION SYSTEMS

Amount of
Total Con-
tributions

Average

Annual

Salary

1915-16 '

Retiring Alloivances
Amount Basis

Service

Age

Disability Allowances
Requirement Amount

Refunds
Cause Amount

Discussion in
Carnegie

Foundation
Reports

$770.40

$600

$360

$998.45

A sum
equal to the
amount of
the annu-
ity of the
first year

$400

$450

$600-$700

$632.85

$624.35

$778.98

$598.63

$381.40

$760.85

$1267.52

$747.44

$680.32

$500

30 years, 15
years in state

$480 maximum

25 years

Amount pur-
chased by the
contributions
of an equal sum
from the state,
or options

One-half of av
erage annual
salary during
last 5 years'of
service. Mini-
mum, $400;
maximum,
a year

50% of average
innual salary
during last 6
years of service

$400 and a pro-
portionate sum
in case of re-
tirement after
20 years and less
than 35 years of
service

30 years and
age 65, or 35
years, 20 in city
of Wilmington

$16 for each
year of service,
with $400 max-
imum

$400

$600-$700 ac-
cording to
years of service
above 85

25 years, 15
years in state

35 years or
30 years and
age 60

30 years, 20
years in the
city; 40 years of
service up to
time of estab-
lishment of the
fund

30 years, 15
years in city at
discretion of
Board; 35
years, 15 years
in city, or 65
years of age,
on request

25 years, 15
years in state

25 years, 16
years in city

25 years, 15
years in city

35 years, 23 in
state

60 years,
men ; 65
years,
women

60 volun-
tarily;
70 compul-
sorily

Bodily or mental
infirmity ; 15 years
of service

Permanent inca-
pacity; 10 years'
service

Incapacity for
further satisfac-
tory service after
age 55

Mental or physical
incapacity certified
by three physicians
appointed by the
Board of Retire-
ment ; 16 years of
service, 10 in the
city

One-thirtieth of
full pension for
each year of service
up to 30 years

Mental or physical
disability after 25
years of service, 15
years in city

Incapacitated for
performance of
duty after 20 years'
service. Medical
examination from
time to time

Incapacity de-
clared by two phy-
sicians ; 15 years'
service ; must pay
a total of $400 into
the fund

Permanent disabil-
ity proved by three
physicians at re-
quest of Board of
Trustees after 15
years of service

Permanent disabil-
ity proved by three
physicians at the
request of the
Board of Manage-
ment after 15 years
of service

Disability proved
by medical exam-
nation at teacher's
expense; 25 years
of service

Same ratio of full
pension as years
served are to 30
years

maximum

Same basis as pen-
sion

Same basis as pen-
sions

Same ratio of full
pension as years of
service of the total
required

$16 for each year of
service, with $400
maximum

Same ratio of full
pension as years of
service of the total
required

$350-$575 according
to years of service
above 25

IX, p. 30

IX, p. 36
XII, pp. 87 ff.

Withdraw-
al from
service or
death

Total con-
tributions
with com-
pound
interest

XII, pp. 87 ff.

Dismissal

Total con-
tributions
without
interest

Resigna-
tion

Death

Two-
thirds
without
interest
One-half
of total
contribu-
tions
without
interest

Ceasing to
teach be-
fore com-
pleting 15
years' ser-
vice

50% of
amount
contrib-
uted with-
out inter-
est

X, p. 51 f.

Resigna-
tion before
completing
16 years of
service, or
dismissal

One-half of
total con-
tributions;
the total in
case of dis-
missal

VII, pp.37, 38

Resigna-
tion before
completing
15 years of
service.
Dismissal
or failure
of reap-
pointment

One-half of
total con-
tributions

Total con-
tributions

Leaving
service for
any reason

Amount
contrib-
uted with-
out inter-
est

X, p. 52

1 Based on Report of United States Commissioner of Education, 1917.

TABULAR STATEMENT OF

State

Date of
the Es-
tablish-
ment

Administration

Board

Including
Teachers'
Represen-
tatives

Expenses of
Administra-
tion

Membership

Teachers

already in

Service

New
Teachers

Source of Funds

State, etc.

Teachers' Annual
Contributions

Indianapolis

1907

Terre Haute

Kansas
Topeka

Kentucky
Louisville

Cities of Second
Class
(Permissive)

Louisiana
New Orleans

Maine

Maryland

Allegany Co.

Baltimore Co.

Baltimore

1913

1931

1912

1914

1910

1913

1908

1912

1908

Board of Trus
tees, 7 members

Board of Trus-
tees, 6 members

Board of Edu-
cation

Trustees of
Teachers' An-
nuity Fund of
7 members

Board of Insur-
ance and Annu
ity of 7 mem-
bers

Board of Trus-
tees of 7 mem-
bers

State Superin-
tendent of
schools

State Board of
Education

3 members
elected by
public
school
teachers of
the city

6 members
employed
in the ser-
vice elect-
ed by teach-
ers

4 members
elected by
teachers

3 members
elected by
teachers

Board of Trus- 3 elected
tees. 5 members by teachers

Board of Trus-
tees, 9 members

Board of Trus-
tees, 7 members

5 elected
by teachers

3 elected
by teachers

Compul-
sory on
teachers
receiving
$450 a year
or more

Optional

Remuneration
to the Treas-
urer paid annu
ally out of the
fund as decided
by the Board

Remuneration
totheSecretary
and any other
employees
fixed by the
Board

Compul-
sory on
teachers
receiving
$460 a year
or more

Optional

Compul-
sory on
teachers
receiving
$450 a year
or more

Optional

Optional to
Jan. 1,1911

Compul-
sory

Optional

do.

Compul-
sory on
teachers
receiving
$450 a year
or more

Compul-
sory after
passage
and

adoption
of the act

Compul-
sory

do.

Gifts, grants, devises,
or bequests, a tax of 1
cent upon $100 of tax-
able property in the
city

1% of salary during
first 15 years of service
up to $10 ; 2% of salary
after first 16 years up
to $20

Gifts, grants, devises, or
bequests ; a tax of \i of
one mill upon each $1
of taxable property

Gifts, etc.; a sum from
general funds of not
less than 1% times the
amount of the assess-
ments on salaryand not
less than the amount
necessary to meet the
demands of the fund

Gifts, grants, devises,
or bequests, etc.

$1000 yearly out of
funds for maintenance
of schools ; a levy of 1
cent on every $100 of
taxable property;
donations, gifts, etc.

Gifts, grants, bequests

State appropriation of
$S000 a year first year
and $25,000 annually
thereafter

State appropriation of
$28,000 annually

Gifts, grants, bequests:
county appropriations
to meet the expenses
of the fund

do.

$10 a year for first 12
years of service ; $20 a
year for next 8 years
$25 a year for 10 years
thereafter

1-15^% of salary

l%of salaryduring first
15 years, up to $10 a
year : 2% up to $20 a
year thereafter

1% of the salaries of
teachers during first 10
years and 2% there-
after ; maximum $40 a
year

1% of salary of class-
room teachers during
first 10 years ; 1^% dur-
ing next 10 years ; 2%
thereafter. Non-class-
room teachers pay 2%
of salary

1% first 10 years; \%%
during next 10 years;
2% thereafter. Maxi-
mum in each period

$10, $15, $18

1% first 10 years: \\i%
during next 10 years;
2% thereafter. Maxi-
mum in each period
$14.40, $21.60, $28.80

do.

TEACHERS PENSION SYSTEMS (Continued)

Amount of
Total Con-
tributions

Average
Annual
Salary
1916-16

Retiring Allowances

Amount

Basis

Service

Age

Disability Allowances

Requirement

Amount

Refunds

Cause

Amount

Discussion in
Carnegie

Foundation
Reports

At least
$250

§510

A sum
equal to
the first
year's an-
nuity if re-
tiring after
30 years'
service

A sum
equal tothe
amount of
the first
year's an-
nuity

§610
maximum

A sum
equal to
the amount
of the first
payment

do.

§682.54

§765.18

§751.69

§600 maximum.
Proportionate
pension for less
than 40 years
of service

§300-§600, ac-
cording to
years of service

$500

§400 maximum.
Proportionate
pension for less
than 40 years
of service

30% of average
salary for last
5 years of ser-
vice plus 2% of
this salary for
each year
above 26 years.
Maximum 60%
or §600

§730.63

§430.24

§150-$260 ac-
cording to
length of ser-
vice

§561.06

$557.00

$739.00

§693.32

One-half of av
erage annual
salary for last 5
years of ser-
vice. Minimum
$300; maximum
$600

§200

50% of average
annual salary
during last 6
years of ser-
vice. Minimum
$200; maximum
$400

50% of average
annual salary
during last 5
years of ser-
vice. Minimum
§360; maximum
§600

do.

40 years

20 years or
more, 12 of
which may
have been
outside

30 years. 15
years in thecity
schools

40 years for full
pension, 30
years for pro-
portionate pen-
sion. All service
must be in the
city

25 years, 20 in
the state and 15
in the city con-
cerned

40 years

25-35 years, 20
years in state

25 years ; and
physical or
mental infirm-
ity

40 years, 20
years in the
county

35 years, 20
years in the
county

40 years, 20
years in the
city

Aged, infirm, dis-
eased, or disabled
teachers after 15
years of service
and examination
by a physician ; to
be reexamined
from time to time

Same ratio of full
pension as years of
service of the total
required

Disability or inca-
pacity af ter25years
of service, 15 years
in the city schools

Disability or dis-
ease after 20 years
of service on exam-
ination by a physi
cian

Disability after 15
years of service in
the state, and 10 in
the city concerned
after medical ex-
amination

Disability after 10
years of service
after medical ex-
amination

Disability after 20
years of service
after medical ex-
amination

do.

Withdraw-
al from ser-
vice before
receiving
benefit
from the
fund, or in
case of
death

W ithdraw-
al from ser-
vice before
completing
20 years of
service, or
in case of
death

Same ratio of full
pension as years of
service of the total
required

Dismissal

Withdraw-
al from ser-
vice or
death

Same ratio of full
pension as years of
service of the total
required

Proportionate
amount of full pen
sion according to
length of service

Same basis as sal-
ary

do.

One-half of
the total
contribu-
tions with
out inter-
est

Withdraw-
al from ser-
vice

Resigna-
tion or dis-
missal

Resigna-
tion or
death

Ceasing to
teach in
the county
or death

do.

Total con-
tributions
without
interest

Total con-
tributions.
One-half of
total con-
tributions
without
interest

One-half of
total con-
tributions
without in-
terest

Three-
fourths of
contribu-
tions with-
out inter-
est

One-half of
contribu-
tions
without
interest

do.

IX, p. 37

VII, p. 33

VII, p. 26
IX,pp.25,28f.

TABULAR STATEMENT OF

State

Date of
the Es-
tablish-
ment

Administration

Board

Including
Teachers'
Represen-
tatives

Expenses of
Adminis-
tration

Membership

Teachers

already in

Service

New
Teachers

Source of Funds

State, etc.

Teachers' Annual
Contributions

Massachusetts

Boston (1)

Boston (2)

Michigan

Detroit

Minnesota

Duluth

Minneapolis

St. Paul

Missouri
St. Louis

Montana

1913

1900

1908

1915

1895

1915

1909

1901

1915

Teachers' Re-
tirement
Board, 7 mem-
bers

Board of Trus-
tees, 11 mem-
bers

Board of Trus-
tees, 3 members

State Teachers
Retirement
Fund Board, 6
members

Board of Trus-
tees, 7 mem-
bers

Board of Trus-
tees of the
Teachers' Re-
tirement Fund,
5 members

Board of Trus-
tees, 9 mem-
bers

Board of Trus-
tees, 11 mem-
bers

Executive
Committee,
9 members

Public School
Teachers' Re-
tirementSalary
Fund Board,
3 members

3 members
elected by
the benefi-
ciaries

6 members
elected by
teachers

At least
one woman
teacher.
Appointed
by Gov-
ernor

3 teachers
elected by
members of
the fund

3 elected by
the mem-
bers of the
retirement
fund asso-
ciation

Selected by
the teach-

5 elected by
the teach-

ers

6 members
elected by
the mem-
bers of the
fund

5 members
elected by
the Teach-
ers' Benev-
olent Fund
Association

Annual state
appropriations
according to
the estimates
for expenses

Maximum of
$1600 a year
appropriated
by the city

Not less than
$1500 a year for
Secretary, and
actual ex-
penses of mem-
bers of the
Board paid out
of the fund

Salary of Secre-
tary and all
necessary ex-
penses paid out
of the fund

Legislature
makes such ap-
propriations as
may be neces-
sary

Optional
up to Sept.
30, 1914, or
thereafter
on paying
arrearages
with inter-
est

Optional

Optional
within 1
year of the
passing of
the act

Optional up
to Sept. 1,
1917

Optional

Compul-
sory

Optional

Optional up
to Jan. 1,
1916

Compul-
sory

Optional

Compul-
sory

Optional

Compul-
sory

State appropriation,
annually

Gifts and legacies

Annual appropriation
by city of 5 cents on
each $1000 of the valua-
tion of the city

Donations, gifts, lega-
cies, etc.; income from
investments

Donations, legacies,
gifts, bequests, etc.;
appropriations by the
Board of Education or
the Common Council
and the Board of Esti-
mates Reductions from
teachers' salaries for
absence, etc.; and tui-
tion of non-residents

Donations, gifts, lega-
cies, bequests, etc.; in-
terest on investments;
one-tenth of one mill on
all taxable property in
the state

One- tenth of money re-
ceived each year from
property tax

do.

Gifts, donations, be-
quests, interest on
investments

Donations, legacies,
gifts, and bequests; in-
come and interest from
investments

3% to 7% of salary; not
less than $36, nor more
than $100

$3 from every alternate
monthly payment

WJo of salary (up to $5)
in first 6 years; 1% (up
to $10) next 10 years;
2% (up to $20) next 16
years

1% to 3% of salary up
to $1000 salary a year

$5 first 6 years; $10 sec
ond 5 years; $20 next 10
years; $25 next 5 years

$10 first 6 years,$20 next
5 years, and $25 up to 30
years

0first5years:$20next
5 years ; $25 up to end of
30 years of service

Initiation fee $5; 1% of
salary up to $25 per
year

Members before Oct. 12,
1907, pay 1% of salary
for 30 or 25 years ; others
pay 1% of salary up to
$15 a year for 35 years

$1 a month, up to and
including 25 years

TEACHERS PENSION SYSTEMS (Continued)

Amount of
Total Con-
tributions

Average

Annual

Salary

1915-16

Retiring Allowances

Amount

Basis

Service

Age

Disability Allowances

Requirement

Amount

Refunds

Cause

Amount

Discussion in

Carnegie

Foundation

Reports

From $1050
to $3000 in
30 contri-
butions

$640

$425 maxi-
mum or at
least 60%
of the
prospective
annuity for
1 year

$800.18

$1337.59

Annuity pur-
chased by con-
tributions and
an equal sum
from the state ;
or options

do.

$605.47

$660

Maximum

$625

$300

$969.78

$521.52

$895.80

$1122.28

$1081.41

$702.43

Determined
each year by
the Board of
Trustees. Max-
imum $1,80

30 years

30 years, 10
years in the
city

One-third of
salary at time
of retirement;
minimum $312,
maximum $600

One-half aver-
age annual sal
ary for 6 years
preceding re-
tirement. Min.
$200; max. $50(
Proportionate
amount for ser-
vice from 26 to
30 years

$330

$350-$500
according to
years of
service

$333.33-$500
according to
years of service
from 20 to 30
years

$333.33-$500 ac-
cording to years
of service from
20 to 30 years

$480

Annual appro-
priation made
and divided
equally among
annuitants

$600

30 years, 10 in
the city

30 years, 15 in
the state

30 years, 20 in
city or 25 years
in city onappli
cation;25 years,
16 in city, at
discretion of
Board

20 years, 10
years in the
state

20 years

25 years, 15
years in the
city

Members be-
fore Oct. 12,
1907, 30 years
for men, 25 for
women, 15
years in city.
Other members
35 years' ser-
vice and 16
years in Asso-
ciation

25 years, 15
years in the
state

Voluntary
at 60 ; com-
pulsory at
70

Inability to render
satisfactory service
after 15 years of
service

Incapacity certi-
fied by 2 physi-
cians ; 2 years of
service

Incapacity. Same
requirement of ser
vice as for pension

Physically or men-
tally incapable in
judgment of em-
ploying board ; 15
years of service

Incapacity in judg-
ment of Board. 20
years of service, 10
in city

Physical or mental
incapacity; 15
years' service

Incapacity after 2
years

Incapacity after 2
years of service

Incapacity after 5
years of service de-
termined by 3 phy-
sicians

Physical or mental
incapacity, by vote
of Board

Physical or mental
incapacity; 15
years' service

Same basis as pen-
sion

One-thirtieth of
full annuity multi
plied by years of
service

Same as retiring
allowance

One-twentieth of
the full annuity
for each year

An amount deter-
mined by the
Board

Same ratio to full
pension as years
of service to total
required

Same ratio of full
pension as years
served are to 25
years

Withdraw
al from ser-
vice before
retirement
age; or in
case of
death

Resigna-
tion from
service
after 2
years

Withdraw
al from ser
vice before
retirement
age

Resigna-
tion or dis
missal for
cause

Resigna-
tion from
service or
death be-
fore receiv
ing pension

Discharge

Resigna-
tion

Withdraw
al from ser-
vice

Discharge
from ser-
vice

Resigna-
tion

Amount
contrib-
uted with
compound
interest at
3%

One-half of
total con-
tributions

50% of the
amount
contrib-
uted
without
interest

Not to ex
ceed 50% of
contribu-
tions at dis
cretion of
Board

60% of the
amount
contrib-
uted with-
out interest

All the con-
tributions
without in-
terest. One-
half the
contribu-
tions with-
out interest

An amount
equal to the
total con-
tributions

Total con-
tributions

Half of
total
contribu-
tions

VIII, p. 46
IX, p. 28

VII, p. 41
IX, p. 25

VII, p. 41

X, p. 53

X, pp. 53 f.

VII, p. 36
IX, p. 36

X, p. 64

TABULAR STATEMENT OF

State

Date of
the Es-
tablish-
ment

Administration

Board

Including

Teachers7

Represen-

ta tives

Expenses of
Adminis-
tration

Membership

Teachers

already in

Service

New
Teachers

Source of Funds

State, etc.

Teachers'1 Annual
Contributions

Nebraska
Omaha

Nevada

New Hampshire

New Jersey (1)

New Jersey (2)

New York

Albany

Buffalo

Cohoes

Mt. Vernon

1909

1915

1896

Board of Trus-
tees of the
Teachers' Re-
tirement Fund.
9 members

1903

1911

1907

1896

1908

1909

Board of Edu-
cation

State Board of
Education

State Superin-
tendent of
Instruction

Commissioner
of Education

State Teachers'
Retirement
Fund Board,
5 members

Board of Trus-
tees, 3 mem-
bers

Board of Trus-
tees, 5 mem-
bers

Board of Trus-
tees, 7 members

Board of Edu-
cation

5 teachers
nominated
by elected
delegates
and ap-
pointed by
the Gov-
ernor

3 represen-
tatives ap-
pointed by
the Com-
missioner
of Educa-
tion

2 members
of teachers
associa-
tions ex
officio

5 teachers
elected by
the teach-
ers

Clerical and
other expenses
paid by the
state up to
$1500 per
annum

Maximum of
$2000 annually
for Secretary
out of the
funds; also
actual ex-
penses of
members of the
Board

Optional up
to Oct. 1,
1915

Optionalup
to Jan. 1,
1909

Compul-
sory after
date on
which the
act came
into effect

Optional

Compul-
sory

Optional

Compul-
sory

Optional

Compul-
sory

Grant of one and one-
half times the amount
of teachers contribu-
tions each year

1% of salary

An ad valorem tax of 3
mills on the $100 of all
taxable property in the
state. Donations, lega-
cies, gifts, and be-
quests, and interest
and income from in-
vestments

Annual state appropri-
ation

i a year

Donations, gifts, lega-
cies, bequests, etc., and
interest from invest-
ments

Deductions from the
annual apportionment
to counties for school
purposes

State appropriations
to carry out purposes
of the law; donations,
legacies, gifts, etc., in-
terest from invest-
ments; districts and
cities contribute an
amount equal to the
sum contributed by the
teachers employed by
them

Donations, legacies,
etc., 5% of excise
moneys

Donations, legacies,
gifts, bequests, etc.;
annual appropriations
by the common council
of city of a sum not ex-
ceeding the teachers
contributions of the
preceding year

Donations, legacies,
gifts; a sum equal to
3% of salary roll from
excise moneys; forfeit-
ures and deductions of
salaries

Donations, legacies,
gifts; 5% of excise
moneys of the city;
deductions and for-
feitures from salary

2% of salary first 10
years; iWJo next 5
years; 3% next 5 years,
Not more than $50 in 1
year

1% of salary

1% to 2% of salary

1% of salary. Maximum
$100 a year

1% of salary

TEACHERS PENSION SYSTEMS (Continued)

Amount of
Total Con-
tributions

Average

Annual

Salary

1916-16

Retiring Allowances

Amount

Basis

Service

Age

Disability Allowances

Requirement

Amount

Refunds
Cause Amount

Discussion in
Carnegie

Foundation
Reports

$854.29

$500

Voluntary
after 35 years'
service, 20
years in city;
compulsory
after 40 years

Disability after 26
years' service

$782.86

$500

30 years, 15 in
the state

Physical or mental
incapacity for
work after 15 years'
service in the
state

$486.80

60% of average
annual salary,
for 5 years pre-
ceding retire-
ment

30 years, 15

years in the

state ;

35 years

Must hold state

certificate

55 women
60 men

Maximum
$1000 or at
least as
much as
the first
year's an-
nuity

$861.86

60% of average
annual salary
for last 6 years
of service.
Minimum $250;
maximum $650

20 years in
state, and in-
capacitated for
service

$861.86

One-half of
average annual
salary for 5
years preced-
ing retirement

35 years in pub
lie school work
25 years in the
state; or 70
years of age
and last 20
years' service
in state; or 32
years' service
in state and 75
years of age

An amount
of at least
50% of the
expected
annuity

$967.20

One-hal f of
average annual
salary during 5
years preced-
ing retirement
Maximum $600

25 years, 15
years in the
state

A sum
equal to
30% of sal-
ary for last
5 years of
service

$756.62

do.

30 years in city

A sum
equal to
40% of sal-
ary at time
of retire-
ment

$881.30

One-half of sal-
ary at time of
retirement
with a maxi-
mum of $800

30 years, wo-
men, 24 years in
city; 35 years,
men, 28 years in
city

An amount
equal to
20% of sal-
ary at time
of retire-
ment. Max-
imum $300

One-half of sal-
ary at time of
retirement.
Maximum $500

30 years, 15 in
city, on request;
40 years, 16 in
city, compulso-
rily

A sum
equal to
30% of
annuity

$949.85

One-half of sal
ary at time of
retirement.
Maximum $800

25 years, wo-
men; 30 years,
men; 16 years
in city

Enforced retire-
ment thru disabil-
ity

Physical disability
after 36 years' ser-
vice in state and
age 70 years

Physical or mental
incapacity; 15
years' service, 9
years in state

Physical or mental
incapacity after
20 years' service

Permanent inca-
pacity for efficient
service. 20 years'
service for women ;
25 years for men ;
four-fifths of period
in city

Mental or physical
incapacity after 20
years' service, 15 in
city

Mental or physical
incapacity after 20
years' service, 10 in
city

Proportionate
allowance of full
pension

An annual amount
in same ratio of f u 1 1
pension as years of
service are of 30
years

Same proportion of
full pension as
years of service are
of total service
required

Same as pension

Same proportion of
full pension as
years of service are
of 25 years

Same basis as full
pension

Proportional al-
lowance of full
pension according
to years of service

Proportional allow-
ance of full pension
for years of service

IX, p. 36

X, pp. 54 f.

X, p. 55

VII, p. 27

IX, pp. 28 f.

X, pp. 62 f., 92

VII, p. 27

IX, pp. 28 f.

X, p. 92

VII, p. 30

VII. pp. 30-33

Failure to
be reap-
pointed

Total con-
tributions
without in-
terest

Dismissal
for cause

Total con-
tributions
without
interest

Discharge
or failure
to be re-
appointed

do.

VII, pp. 30-33

TABULAR STATEMENT OF

State

Date of
the Es-
tablish-
ment

Administration

Board

Including
Teachers'
Represen-
tatives

Expenses of
Administra-
tion

Membership

Teachers

already in

Service

New
Teachers

Source of Funds

State, etc.

Teachers' Annual
Contributions

New York

Rochester

Syracuse

Westchester Co.

North Dakota

Ohio
Cincinnati
Cleveland
Columbus
Dayton
Hamilton
Springfield
Toledo
Tiffin
Younsrstown

Oregon
Portland

Pennsylvania

1917

1905

1897

Board of Edu-
cation

1909

Board of 5 ap-
pointed by
county judge

1913

1911

1917
(Effec-
tive
1919)

BoardofRetire-
ment, 7 mem-
bers

Board of Trus-
tees

Board of Trus-
tees of the
Teachers' In-
suranceandRe-
tirement Fund.
5 members

Board of Trus-
tees, 3-7 mem-
bers

Board of Trus-
tees, 11 mem-
bers

Retirement
Board, 7 mem-
bers

3 members
elected by
the teach-

2 members
in service
elected by
the teach-
ers

Superin-
tendent or
principal

3 members
appointed
by the Gov
em or from
teachers

4-5 mem-
bers elect-
ed by the
teachers

6 members
elected by
members of
the Teach-
ers' Retire-
ment Fund
Association

3 teachers
elected by
members of
the retire-
ment asso-
ciation

Annual appro-
priations by
city according
to estimates
for expenses

Compul-
sory

Compul
sory

Annual appropriations
to accumulate areserve
for each teacher to fur-
nish half of the retiring
allowance, and death
benefits

Compul-
sory

Optional

Compul-
sory

Maximum of
$1200 annually
for Secretary
out of the fund
also actual ex-
penses of mem-
bers of the
Board

Optional
up to Jan.
1, 1914

Compul-
sory

Optional

Compul-
sory

Optional

Compul-
sory

State appro-
priations ac-
cording to
estimates of
the Board

Optional

Compul-
sory

Such percentage of sal-
ary as will accumulate
to provide half of the
retiring allowance;
minimum of 3% of sal-
ary for those in service

Donations, legacies,
gifts, etc.; annual ap-
propriations by city of
one-half of teachers'
contributions, etc.

Deductions for ab-
sence; donations, lega-
cies, gifts; and other
sources

Donations, legacies,
etc.; appropriations
not exceeding total of
teachers' assessments

A fund of ten cents for
each child of school age
in each county

Donations, legacies,
gifts, and bequests;
1% to 2% of gross re-
ceipts of taxation
raised by the board of
education; deductions
for absence, etc.

Gifts and donations:
3% of taxes levied for
school purposes: fines
and forfeitures on
teachers

State appropriations to
accumulate a reserve
for each teacher to
furnish half the retir-
ing allowance

2% of salary

Maximum of 1% of sal-
ary

1% of salary

l%of salary during the
first 10 years up to $20;
2% during the next 15
years up to $40

$2 a month from salary

$1 a school month dur-
ing the first 10 years;
$2 a school month dur-
ing the next 10 years;
$3 a school month for
10 years following

An annual sum up to
5% of salary (maximum
$2000) actuarially de-
termined to yield about
half of retiring allow
ance

TEACHERS PENSION SYSTEMS (Continued)

l&'

Amount of
Total Con-
tributions

Average

Annual

Salary

1915-16

Retiring Alloivances

Amount

Basis

Service

Age

Disability Allowances

Requirement

Amount

Refunds
Cause Amount

Discussion in
Carnegie

Foundation
Reports

$1261.41

Amount
equal to
50% of
annuity
expected

40% of sal-
ary at time
of retire-
ment

$860.25

A sum
equal to 20%
of salary
at time of
retirement

A sum
equal at
least to full
amount
of the
annuity
expected.
Maximum

$600

$689.41

$574.76

$528.88

$1222.18

$470.18

Annuity equal
to half of aver-
age salary dur-
ing last 10 years
of service, pur-
chased with
accumulations
of contribu-
tions from city
and teacher ; or
options

One-half of sal-
ary at time of
retirement
with a maxi-
mum of

do.

One-half of
annual salary
in 5 years pre-
ceding retire-
ment. Maxi-
mum $600;
superintendent
or principal
$800

One-fiftieth of
average salary
for five years
preceding re-
tirement multi
plied by total
years of ser-
vice. Maxi-
mum $750

$12.50 for each
year of service,
with a maxi-
mum of $450

$333.33Ms at end
of 20 years
service plus
$16.66% for
each additional
year of service.
Maximum $500

Annuity pur-
chased with ac-
cumulated con-
tributions and
from state one-
one-hundred
sixtieth for
each yearof ser-
vice; or options

35 years of ser-
vice or age, as
in next column

20 years, wo-
men, 25 years,
men ; 15 years
in city, in case
of dismissal or
compulsory re-
tirement. Vol-
untarily, SO
years for wo-
men, 35 years
for men; 15
years in city

do.

25 years, 10 in
county

25 years, 18
years in state

30 years, 15 in
city paying the
pension

30 years

65 volunta-
rily; 70
compulso-
rily

62 volunta-
rily; 70com-
pulsorily

Mental or physical
incapacity for per-
formance of duty
after 10 years of
service; periodical
medical examina-
tion required

Mental or physical
incapacity; 15
years of service, 6
years in county

Permanent mental
or physical disabil-
ity; 15 years of
service

Physical or mental
disability; 20 years
of service. 10 in city
paying the pen-
sion ; vote of a ma-
jority of Board of
Trustees

Total disability
after 20 years of
service, 10 years in
city

Disability after 10
years of service ;
periodical medical
examination re-
quired

Annuity purchased
by teachers' ac-
cumulations, and
pension from city
of one-fifth of aver-
age salary during
last 10 years of ser-
vice for each year
of service

Resigna-
tion, dis-
missal, or
death

Total con-
tributions
with com-
pound in-
terest, plus
half of final
salary in
case of
death

VII, pp. 39-41

VIII,pp.53-55

IX, p. 39

X, pp. 59 ff.

XI, pp. 112 fif.

XII, pp. 87 ff.,
106 ff.

Discharge
or failure
to be re-
appointed

Total con-
tributions
without
nterest

do.

Same ratio of full
pension as years of
service are of total
required

do.

Same basis as in
case of full pension

Withdraw-
al before
retirement

One-hal f of
the sum
contrib-
uted with-
out inter-
est

IX, pp. 28, 31

Same basis as re-
tiring allowance

Failure to
be reap-
pointed be-
fore com-
pleting 20
years of
service
Resigna-
tion

Total con-
tributions

Half of to-
tal contri-
butions

VII, p. 37
IX, p. 36

Same as retiring
allowance

Failure to
be reap-
pointed or
discharge
Resigna-
tion

Total con-
tributions
without
interest
Any sum in
excess of
$300 without
interest

Annuity purchased
with accumulated
contributions, and
from state one-
ninetieth of final
salary for each year
of service. Mini-
mum 30%; maxi-
mum eight-ninths
of final salary

Resigna-
tion, dis-
missal, or
death

Total con-
tributions
with com-
pound in-
terest, or
an annuity
purchased
therewith

XII, p. 110

TABULAR STATEMENT OF

State

Date of
the Es-
tablish
ment

Administration

Board

Including
Teachers'

Represen-
tatives

Expenses of
Adminis-
tration

Membership

Teachers

already in

Service

New
Teachers

Source of Funds

State, etc.

Erie

Harrisburg

Philadelphia

1916

l'.NIS

Scranton

Rhode Island

Newport

Providence

South Carolina
Charleston

Tennessee
Chattanooga

Utah

Permissive in
cities of first or
second class

Salt Lake City

1907

Teachers' Re-
tirement
Board, 5 mem-
bers

2 teachers
elected by
the Teach-
ers' Retire-
ment Asso-
ciation

Retirement
Board, 5 mem-
bers

1911

1907

1898

1897

1898

1915

1917

1909

Retirement
Board, 6 mem-
bers

2 members
elected by
teachers

Annual appro-
priations by
Board of School
Directors
according to
estimates for
expenses

Retirement
Board, 7 mem-
bers

State Board of
Education

Board of Trus
tees, 7 members

Board of Trus-
tees, 8 members

Board of Trus
tees, 3 members

Board of Com-
missioners

Local Retire-
tirement Com-
missions, 3
members

Retirement
Commission, 7
members

3 members
elected by
teachers

3 elected by
teachers

1 member
elected by
teachers

3 members
elected by
the mem-
bers of the
retirement
associa-
tions

3 members
elected by
teachers

Optional

Compul-
sory except
where
teacher re-
ceives only
the mini-
mum salary
under state
law

Optional

Compul-
sory

Compul-
sory as for
teachers in
service

Compul-
sory

Optional

No compensa-
tion for Com-
missioners or
officers

Optional
for 30 days
after local
organiza-
tion

Teachers' Annual
Contributions

Annual appropriations 3% to 7% of salary; not
by Board of School Di- less than $35, nor more

rectors in accordance
with estimates

Annual appropriation
by Board of School Di-
rectors of a sum equal
to the amount of teach-
ers contributions; any
other funds

Annual appropriation
of a sum equal to the
amount of teachers
contributions. Mini-
mum $50,000

Compul-
sory

Annual appropriation
by Board of School Di-
rectors of a sum equal
to the amount of teach-
ers contributions; any
other funds

Annual appropriations
to carry out the pur-
poses of the act

Donations, legacies,
bequests, etc. ; appro-
priations

than §100

2% of salary during the
first ten years; 3% of
salary thereafter. Max
imum in one year $50

l%of salary during first
ten years of service ;
2% of salary thereafter
Maximum in one year
$50

$9 a year during first
10 years ; $15 a year sub-
sequently for 20 years

1% of salary

Donations, legacies,
bequests, etc.

Donations, legacies,
gifts, bequests, etc. ; 8%
of gross income of the
special school fund
paid'on the one mill tax
until 1927

Local taxes

Donations, legacies,
bequests, etc.; deduc-
tions for absences,
etc.

Donations, legacies,
bequests, etc.; deduc-
tions for absences, etc.

1% of salary

1% of salary with max-
imum of $12 a year

TEACHERS PENSION SYSTEMS (Continued)

Amount of
Total Con-
tributions

Average

Annual

Salary

1915-16

Retiring Allowances

Amount

Basis

Service

Age

Disability Allowances

Requirement

Amount

Refunds
Cause Amount

Discussion in
Carnegie

Foundation
Reports

25 pay-
ments

$714.83

Annuity pur-
chased by con-
tributions and
an equal sum
from the city

One-half of an
nual salary at
date of retire-
ment. Mini- ,
mum $300;
maximum

$946.52

Maximum

$652.77

$721.91

$580.05

$784.54

$553.52

.11

$724.92

$866.46

One-half of an-
nual salary at
date of retire-
ment. Mini-
mum $400 ; max-
imum $800.
Smaller pen-
sions may be
supplemented
out of E!kin
Fund

Maximum $500

One-half of
average annual
salary for five
years preced-
ing retirement.
Maximum $500

One-half of an-
nual salary at
time of retire-
ment. Maxi-
mum $600

do.

One-half of an-
nual salary at
time of retire-
ment. Maxi-
mum $260

Two-thirds of
salary in last
year of service

One-half of
average annual
salary during
last 5 years of
service. Maxi-
mum $600

One-half of av-
erage annual
salary during
last 5 years of
service. Maxi-
mum $600

30 years

30 years, 20 in
city

30 years, 20 in
city; if physi-
cally or men-
tally incapaci
tated, or age 60

30 years, 15
years in city

35 years, 25
years in state.
Must hold state
teacher's certi-
ficate

30 years, 15 in
city

35 years, men,
30 years, wo-
men ; 20 years
in city

25 years ; need
of maintenance
must be proved

30 years

30 years, 10
years in state

Physical or mental
disability after 15
years of service

Disability; 5 years
of service

Disability ; 5 years One-thirtieth of
of service full annuity for

each year of service

Same basis as retir-
ing allowance

One-thirtieth of
full annuity for
each year of ser-
vice

30 years, 10
years in state

Total disability; 6
years of service ;
re-examination by
physician

Physical or mental
incapacity after 10
years of service,
after medical
examination

do.

Physical or mental
disability; 30 years
of service, 10 in
state

Same basis as
pension

do.

One-half of average
annual salary dur-
ng 5 years preced-
ing retirement.
Maximum $600

One-hal f of average
annual salary dur-
ng 5 years preced-
ing retirement.
Maximum $600

With-
drawal
or death

Total con-
tributions
with com-
pound in-
terest

Dismissal

In case of
death

Total con-
tributions
without
interest

A sum
varying
from total
amount to
one- third of
contribu-
tions

according
to years of
service

Total
amount
of contri-
butions

XI, p. 109

VII, pp. 42, 43

VII, p. 27

XI, p. 109

VII, p. 36
IX, p. 32

XII, p. 94

TABULAR STATEMENT OF

State

Date of
the Es-
tablish-
ment

Administration
Board

Including
Teachers'
Represen-
tatives

Expenses of
Adminis-
tration

Membership

Teachers
already in

Service

New
Teachers

Source of Funds

State, etc.

Teachers' Annual
Contributions

Vermont

Virginia

West Virginia
Wheeling

Wisconsin

Milwaukee

1913

1908

State Board
of Education

1916

1911

1909

Public School
Teachers'
Annuity and
Retirement
Fund Trustees,
9 members

Board of Man-
agers, 7 mem-
bers

2 members
elected by
members of
the retire-
ment asso-
ciation

Actual ex-
penses of mem-
bers of the
Board paid out
of the fund

Board of Trus
tees, 7 members

2 teachers
elected

Clerk of Board
receives 2% of
annual receipts

Board of Trus-
tees of the
Teachers' In-
surance and
Retirement
Fund, 5 mem-
bers

3 members
elected by
the mem-
bers of the
fund

Maximum of
$1200 annually
for Secretary,
and actual
expenses of
members of
the Board to
be paid out of
the fund

4 teachers

Donations, legacies,
gifts, etc.; state appro-
priation not exceeding
$10,000 annually;
income and interest
from investments

State appropriation of
$5000 : legacies, be-
quests, etc. ; income
and interest from
investments

Optional

Compul-
sory

Gifts and donations;
appropriations of
Board to meet the
requirements

Optional up
to Sept. 1,
1912

Compul-
sory

Optional

Compul-
sory

Donations, legacies,
etc.; state to make up
deficit out of school
funds

Gifts and legacies; in-
come and interest from
investments; and at
the discretion of Board
of School Directors a
sum not to exceed 1%
of the gross amount
of the school fund in
one year

Fixed by local author-
ities

1% of salary

1% of salary during
first 10 years up to $15 ;
2% but not more than
$30 during next 15 years

: a month

TEACHERS PENSION SYSTEMS (Concluded)

Amount of
Total Con-
tributions

Average

Annual

Salary

1915-16

Retiring Allowances

Amount

Ha. fix

Service

Age

Disability Alloivances

Requirement

Amount

Refunds
Cause Amount

Discussion in
Carnegie

Foundation
Reports

40% of the

expected

annuity

30% of av
erage an-
nual salary
during last
5 years of
service

$600

Maximum

$600

$500

$422.72

$341.90

$685.85

$545.00

$983.62

One-half of the
largest salary
received by
beneficiary
during service
in the state.
Maximum $600

One-half of av-
erage annual
salary during
last 5 years of
service. Maxi-
mum $600

$360

$12.50 for each
year of service.
Maximum

$400

25 years in the
state ; 30 years
total, 20 years
in the state

30 years in the
state

Age or infirmities

58 men
50 women

30 years, 20
years in the
city

25 years, 18
years in the
state

25 years, 15
years in the
city

Physical or mental
disability certified
by State Board of
Health and Board
of Education

Total disability
after 20 years
of service at
discretion of
Board

Physical or mental
disability ; 18 years
of service

Incapacity, certi-
fied by 2 physi-
cians ; 15 years of
service

Discretionary

Same basis as
pension

At discretion of
Trustees if tempo-
rary ; if permanent
one-twenty-fifth of
full annuity for
each year of service

Resigna-
tion, dis-
missal, or
death

Total con-
tributions
without
interest

One-half of
total con-
tributions
without
interest

One-half of
total con-
tributions

IX, p. 32

VII, p. 26

XI, p. 110

VII, pp. 26, 27

IX, p. 28

XII, p. 94

SUMMARY OF TEACHERS PENSION SYSTEMS

A study of 67 pension plans for teachers in the United States, representing twenty-five
states and sixty-four counties and cities, shows that the movement for such pensions
is recent but widespread, and still extending. Generally the systems are administered
by special boards, in which the teachers constitute a majority. Provision is as a rule
made for retirement on the basis of service and of disability, but usually only for teach-
ers entering the service after the establishment of the system. Funds are in most cases
provided by teachers contributions and by public appropriations in approximately
equal amounts, but the funds arranged for are frequently insufficient to pay the pen-
sions that have been promised.

The first system of teachers pensions to be established in the United States was that
of Chicago, which was inaugurated in 1893. Before the year 1900 seven other systems
had been founded. Before 1910 there were 23 more. More than half of all of the sys-
tems (36), however, have come into existence since the beginning of 1910. Our general
experience concerning teachers pensions, therefore, is still very brief, — and this in
spite of the fact that there are some questions concerning pensions that experience
alone can answer.1

There are now state wide pension systems for teachers in 21 states, permissive sys-
tems in 4 others, and local systems in 9 more. Thus 34 states are represented in the
movement.2

The existing pension systems are sometimes administered by the superintendent or
commissioner of education, sometimes by the Board of Education, but in nearly four-
fifths of the systems there is a special pension board, or commission, or committee.
These boards have from three to eleven members, but two-thirds of them have five or
seven. Nearly all of these special boards (49 out of 51 reporting) include representa-
tives of the teachers, who are generally (42 out of 49 reporting) elected by the teach-
ers themselves. In slightly more than half of the boards the teachers representatives
constitute a minority. As, however, the superintendent or commissioner of educa-
tion is generally an ex-officio member, it may be said that the teachers representatives
generally constitute a majority.3

In nine-tenths of the systems (47 out of 52 reporting) membership is compulsory for
new teachers. Membership has been optional for the teachers already in service at the

1 Years of establishment of 67 systems reporting: 1893, 1895, 1896 (2), 1897 (2), 1898 (2), 1900, 1901, 1903, 1905, 1907 (4),
1908 (6), 1909 (9), 1910, 1911 (9), 1912 (4), 1913 (7), 1914, 1915 C8). 1916 (2), 1917 (4).

2 State systems: Arizona, California, Connecticut, Illinois, Indiana, Maine, Maryland, Massachusetts, Michigan,
Minnesota, Montana, Nevada, New Hampshire, New Jersey, New York, North Dakota, Pennsylvania, Rhode Island,
Vermont, Virginia, Wisconsin.

Permissive systems: Colorado, Kentucky, Ohio, Utah.

Local systems : Delaware, Kansas, Louisiana, Missouri, Nebraska, Oregon, South Carolina, Tennessee, West Vir-
ginia.

3 Direction of 67 pension systems reporting: Superintendent or commissioner 3, Board of Education 10, special pen-
sion board, commission, or committee 64.

Size of 51 special boards reporting : 3 (5), 5 (17), 6, 7 (15), 8, 9 (8). 11 (4).

Teachers representatives on 48 boards reporting: Minority (27): 1/6, Vs (2), 2/7 (2) 1/3, 3/8, 2/6 (8), 8/7 (11), 4/9;
majority (21): «/ii (3), 6/9 (4), 4/7, »/s (8), 2/8 (2), 6/7 (2), 3.

SUMMARY OF TEACHERS PENSION SYSTEMS 71

inauguration of seven-tenths of the systems (37 out of 52 reporting). This illustrates
the difficulty of providing fully for the retirement of teachers who are not in position
to contribute their full share of the expense, — the difficulty that is known as the prob-
lem of accrued liabilities.

In all the systems retirement is on the basis of from 20 to 40 years of service, most
frequently 30 years (32 out of 80 provisions). About one-half of the systems (29 out of
67) make provision also for retirement on the basis of age, at from 50 to 75 years, most
frequently 60 years, for both men (13 out of 26 provisions) and women (11 out of 26
provisions). Nearly six-sevenths of the systems (57 out of 67) have provisions for disa-
bility, usually a proportion of the full pension equal to the proportion of the full years
of service completed before retirement.1

Teachers contribute to the funds in about six-sevenths of the systems (57 out of 67),
most frequently (34 out of 57) 1 or 2 per cent of their salaries. In about six-sevenths
of the systems (54 out of 67) public funds are supplied also, from incidental sources
(46 instances), school (12), or special taxes (13), deductions from teachers pay (9), or,
in nearly three- sevenths of the instances (28 out of 67), from direct appropriations.
The public contribution is not related to that of the teachers in as many systems as
would be expected (only 14 reported). Where it is so related it most frequently equals
the contribution of the teacher (9 out of 14 reporting).2

Return of the teachers contributions in case of resignation is provided for in about
one-half of the systems (30 out of 67), the refund being most frequently one-half of
the contribution, without interest (19 out of 29 reporting). Return in case of dismissal
is provided in about one-half of the systems (35 out of 67), this refund nearly always
being (22 out of 34) all of the contribution without interest. Return in case of death
is provided in about one-third of the systems (20 out of 67), this refund being some-
times one-half (12 instances) and sometimes the entire contribution (9 instances), usu-
ally without interest.3

The financial experience of these systems is, as has been said, yet brief. The repre-
sentative salary (the median of averages ranging from $341 to $1337) of the teachers
in the 63 systems reporting is $730 a year. The representative pension in these sys-
tems (58 reporting) is $500 a year (the median of averages ranging from $180 to $800).
The representative total contribution on the part of the teacher is $510 (the median

1 Service for retirement : 20 years (7), 25 years (21), 30 years (31), 35 years (14), 40 years (7).

Age for retirement : Men : 50, 58, 60 (13), 62, 65 (4), 70 (5), 75; women : 50 (2), 55 (2), 60 (11), 62, 65 (4), 70 (5), 75.

2 Teachers contributions: 1/2%, 1% (24), 1-2%, 1-3%, 1V2% (5), 2% (16), 2V2%, 3% (4), 3-7% (2), 5% (2).

Public contributions : 1/2 of teachers, Rochester (NewYork); 11/2, Omaha (Nebraska); 1V2 or more, Topeka (Kansas);
equal or less, Buffalo, Westchester County, New York; equal, New York City, New York State, Erie, Harrisburg,
Philadelphia, Scran ton (Pennsylvania), Pennsylvania; twice or less, Chicago; three times, Cohoes(New York).

3 Refunds: Tn case of resignation : 1/2 of contribution or less, 1/2 without interest (19), 2/3 without interest, 3/4 with-
out interest, all without interest (3), all with interest (5) — Erie (Pennsylvania), Connecticut, Massachusetts, New
York City. Pennsylvania.

In case of dismissal: 1/2 or less, 1/2 (9), 3/4 without interest, all without interest (19), all with interest (5)— Erie
(Pennsylvania), Connecticut, Massachusetts, New York City, Pennsylvania.

In case of death : 1/2 without interest (12), all without interest (4), all with interest (5)— Erie (Pennsylvania), Con-
necticut, Massachusetts, New York City, Pennsylvania.

72 PENSIONS FOR PUBLIC SCHOOL TEACHERS

of 25 averages extending from $250 to $1000), a frequent requirement being a sum
equal to the first year's annuity. When it is remembered that various systems appro-
priate only an amount equal to the teacher's contribution, it will be evident that
a considerable number of systems are providing funds that will pay pensions for two
years only. There is general need, therefore, for further adjustment between the retire-
ment privileges and the funds that the teachers are able, and the public is willing, to
provide.1

As a matter of actual experience, the disbursements of the former New York City
system, which was established in 1894, began to be larger than the receipts in 1910.
The Teachers1 Retirement Fund of New Jersey, established in 1896, required increased
income in 1899, 1903, and 1906, and its solvency is still in question. The system in
Porto Rico, established in 1898, was abandoned in 1905. The Boston system, established
in 1900, encountered deficiencies in 1914. The Indianapolis fund, established in 1907,
almost met financial difficulties in 1914. The Maryland fund, established in 1908, had
to increase its resources in 1912 and 1914. The Virginia system, established in 1908,
had to reduce its pensions as early as 1912. The Cincinnati fund, established in 19ll,
had to reduce its pensions inl914.TheIllinois system, established in 191 5, encountered
a legislative investigation in the same year. Large privileges, small resources, and the
lack of adjustment between the two, promise similar difficulties for numerous other
systems.

Meanwhile a safer and happier future for pension systems is promised by careful
and comprehensive studies like those of the Massachusetts Commissions on Pensions
in 1910 and 1914 and the studies made in New York City and Illinois in 1915, 1916,
and 1918.

1 Average salaries, 1915-16: $341, $381, $422, $430, $470, $486 (2), $521, $528, $645. $553, $557, $558, $561, $574, $580 (2), $598, $605,
$624, $632, $652, $682 (2), $685, $689, $693, $702, $714, $721, $724, $730, $739, $747, $750, $751, $756, $765, $770. $778, $782, $784, $800,
$821, $854, $860, $861, $866 (2), $881, $895, $946, $949, $967, $969, $989, $998, $1081, $1122, $1222. $1261, $1267, $1337.

Representative pensions: $150 to $250, $180, $200, $200 to $400, $200 to $500, $250, $250 to $600, $300, $300 to $600 (2), $300
to $800. $312 to $600, $330, $333 to $600 (2). $350 to $500, $360, $360 to $600, $400 (6), $400 to $480, $400 to $800 (2), $450 (2),
$480 (2), $500 (10), $600 (10), $600 to $700, $750, $800 (5).

Average total contributions: $250, $270. $300 (2), $360 (2), $390, $400 (3), $426, $450, $500, $510, $540, $600 (3), $600 to $700,
$610, $625, $650 (2), $800, $1000.

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BRIEF BIBLIOGRAPHY

Caiinegie Foundation for the Advancement of Teaching1

The Sixth Annual Report, 1911. Includes discussions of the moral influence of a
pension system ; and the obligations of colleges in the matter of providing pen-
sions for teachers.

The Seventh Annual Report, 1912. Includes discussions of college pensions ; pensions
for public school teachers; proposed state systems; local systems; municipal sys-
tems; industrial pensions; civil service pensions in New South Wales; the Civil
Service Pension Act of South Africa; contributory and non-contributory pensions;
subsistence and stipendiary pensions; a feasible pension system for a college; and
a feasible pension system for public schools.

The Eighth Annual Report, 1913. Includes discussions of new pension systems; and
New York Municipal Pensions.

The Ninth Annual Report, 1914. Includes discussions of pensions for public school
teachers; industrial pensions; federal pensions.

The Tenth Annual Report, 1915. Includes discussions of pensions for public school
teachers; pensions for university professors; clergy pension funds; industrial pen-
sions; and tabular statements of industrial and institutional pensions and of teach-
ers pension systems, with a summary.

The Eleventh Annual Report, 1916. Includes discussions of insurance and annuities
for college teachers; pensions for public school teachers; New York City Pensions;
industrial pensions; and clergy pension funds.

The Twelfth Annual Report, 1917. Includes discussions of insurance and annuities
for college teachers; current pension developments; the Illinois Pension Laws Com-
mission; New York City Pensions ; Pennsylvania, Ontario, and Alberta pension sys-
tems; and pension reporting.

Bulletin Number Nine. A Comprehensive Plan of Insurance and Annuities for Col-
lege Teachers, 1916. A discussion by the president of the Foundation of pensions and
annuities, and life insurance in general and for teachers in particular, with indica-
tions of the limitations of the Foundation's system and suggestions for the develop-
ment of a comprehensive and permanent plan, which has since been inaugurated.

Illinois Pension Laws Commission

Report, 1916. Includes discussions of and actuarial reports on various pension funds
in Illinois, pension laws in foreign countries, and a consideration of underlying
principles and specific recommendations for a revised pension plan.

1 The publications of the Carnegie Foundation are distributed without charge.

76 BIBLIOGRAPHY

Joint Commission on the Support of the Clergy

Preliminary Report, 1913. Presents proposals, after a consideration of pension prin-
ciples, for establishing a pension system for the clergy of the Protestant Episcopal
Church.

Massachusetts

Report of the Commission on Old Age Pensions, Annuities, and Insurance, House
No. 1400, 1910. Altho devoted mainly to the consideration of old age pensions, the
report discusses the questions of contributory and non-contributory, voluntary
and compulsory systems, and contains recommendations concerning pensions for
municipal and other public employees.

Report of the Commission on Pensions, House No. 2450, 1914. Includes statistical
and actuarial investigations of some existing pension funds for teachers and others,
discusses the pension problem, and presents a digest of pension legislation for pub-
lic employees of all states in the United States.

Meriam, L.

Principles governing Retirement of Public Employees. New York, 1918. Discusses
the whole subject of pensions from the social, financial, and actuarial standpoints.
Bibliography.

National Education Association

Report of the Committee on Teachers'1 Salaries and Cost of Living, 1913. Contains
a digest of Teachers1 Pension Laws in the United States.

New York City Pension Commission

Report on the Teachers Retirement Fund of the City of New York, 1915. Includes an
interpretative and constructive report, a tentative reorganization plan with recom-
mendations for financing, and an actuarial valuation of the existing and proposed
laws.

Report on the Pension Funds of the City of New York. Parts I and II, 1916; Part
III, 1918. Pai't I presents a discussion of the operation of the nine existing
pension funds in the New York City municipal employees; Part II contains the
actuarial investigation of these funds; Part III offers recommendations for a law
to reconstitute all the existing pension funds on a unified plan based on scientific
pension principles together with an actuarial report on the probable cost.

Prosser, C. A., and Hamilton, W. I.

The Teacher and Old Age. Boston, 1913. A discussion of existing provisions for

BIBLIOGRAPHY 77

pensioning teachers, the social principles underlying teachers pensions, and the
characteristics of a model retirement law. Bibliography.

United States Bureau of Education

Bulletin No. 34, 1913. Teachers Pension Systems in Great Britain. Analyzes the
history and present organization of teachers pensions in England and Wales and
Scotland, and of local educational areas, with conclusions and bibliography.

Bulletin No. 14, 1916. State Pension Systems for Public School Teachers. Includes
an analysis in tabular form of existing state pension systems, notes on the situ-
ation in various states, a bibliography, and typical pension and retirement laws.

United States. Sixty-first Congress, Third Session, 1911

Document No. 823. Teachers Pensions Laws in the United States and Europe. A
compilation of teachers pension laws in the United States and Europe that ap-
peared from time to time in the Reports of the United States Commissioner of
Education.

Sixty-second Congress, Second Session, 1912

Document No. 732. Retirement from the Classified Civil Service of Superannuated
Employees. Includes a report on retirement allowances by the Commission on
Economy and Efficiency dealing with underlying principles of pension systems, a
savings and annuity plan proposed for the retirement of superannuated employees;
and an account of the civil service retirement plans in Great Britain, New Zealand,
and New South Wales.

Sixty-fourth Congress, First Session, 1916

Hearing before the Committee on Civil Service and Retrenchment, United States
Senate. Consists of a report of the hearing on two Senate Bills for the Retirement
of Employees in the Classified Civil Service, and deals in the main with the ques-
tion of contributory or non-contributory pensions.

INDEX

Accounting, pension, 36.

Accrued liabilities, 8f., 10, 33, 39, 49, 53, 71.

Cost of, 9.
Accumulations, viii, ix, 38, 53 f.
Actuarial meaning of pensions, 16.
Actuary, function and place of, 14, 24, 36, 54 f.
Administration of teachers pensions, 20, 48, 70.

Cost of, 10.

In proposed Vermont plan, 31.
Age of retirement, viii, x, 1 1 f. , 20 f. , 32, 49 f., 71.

In proposed Vermont plan, 32.

Relation of, to contributions, 10.
To pensions, 11.

Voluntary and compulsory, 12, 50.
Age, relation of, to contributions, 10.

To pensions, 9.
Albany, teachers pension system in, 62 f.
Allegany County, teachers pension system in,

58 f.

Allowance, retiring, 50 f.

In Vermont plan, 32.
American Association of University Professors,

Amount of teachers pensions, 20, 32, 50 f.
Annuities and pensions, 11.
Appropriations for teachers pensions, 22, 71.
Arizona, teachers pension system in, 21 , 22, 56 f. ,
70.

Art, pensions for, 3.

Association of American Colleges, 15.

Attorney-general, state, and administration of

pensions, 20, 48.
Attractive power of pensions, vi, 3, 4.
Auditor, state, and administration of pensions,

20, 48.

Austria-Hungary, teachers pension system in,
17, 18.

.Baltimore, teachers pension system in, 58 f.

Baltimore County, teachers pension system in.
58 I.

Belgium, teachers pension system in, 17, 18.

Benefits, pension, types of, 10, 12 f.
Relation of, to contributions, 10.

Bibliography on pensions, 75 If.

Blair. Francis G., xi.

Boards of education and administration of pen-
sions, 20, 70.

Boards of retirement, 20, 48, 70.

Boston, teachers pension system in, 60 f., 72.

Buffalo, teachers pension system in, 62 f., 71.

California, teachers pension system in, 20, 21,

22, 23, 56 f., 70.
Carnegie Foundation, The, v, 15.

Conferences of, with National Education As-
sociation, v.

Trustees of, and fundamental principles of
pensions, 15.
Carr, John W., xi.
Cash disbursement plan, 8, 25, 53.
Charleston, teachers pension system in, 66 f.
Chattanooga, teachers pension system in, 66 f.
Chicago, teachers pension system in, 18, 56 f.,

70, 71.

Cincinnati, teachers pension system in, 64 f., 72.
Civil service, pensions in, 3.
Claxton, Commissioner P. P., v.
Cleveland, teachers pension system in, 64 f.
Cohoes, teachers pension system in, 62 f., 71.
Colorado, teachers pension system in, 56 f., 70.
Columbus, teachers pension system in, 64 f.

Commissionerof education on retirement board,

48.

Committee on Salaries, Tenure, and Pensions,

National Education Association, v, xi.
Compulsory or voluntary pension systems, 7,

11, 16, 31, 48 f., 70 f.
Connecticut, teachers pensions in, 19, 20, 21,

22, 23, 24, 27, 56 f., 70, 71.
"Constructive contributions," 5.
Contractual right to pensions, x, 5, 6, 16.
Contributions, amount of, in teachers pension
systems, 10, 22 f., 52 f., 71.

Conditions determining, 25, 52.

"Flat rate," 11.

In proposed Vermont plan, 34.

Return of, 10, 14, 23, 54, 71.

Sources of, 22, 71.
Contributory pensions, 6.

Cost of, 6, 10 f.

Voluntaryor compulsory pension systems, 7f.
Cooperation between employers and employees

and pensions, vii, 6, 7, 13, 15.
Cost of pensions, vii, 6, 9 ff.

Conditions underlying, 9.
Court favorites, pensions for, 3.

-Dayton, teachers pension system in, 64 f.
Death, returns in case of, 10, 14, 54.
Deferred wages, pensions as, 7.
Delaware, teachers pension system in, 56 f., 70.
Denmark, teachers pensions in, 17.
Denver, teachers pension system in, 56 f.
Departmentof Superintendence, meetings of, v.
Detroit, teachers pension system in, 60 f.
Disability allowances, vi, viii, x, 4, 10, 13, 21 f.,
32, 51 f., 71.

In Massachusetts, 28.

In New York City, 26.

INDEX

In Pennsylvania, 29.

Medical examinations for, 21.

Proposed Vermont plan, 32, 51 f.

Service requirement for, 13, 22, 51 f.
Dismissal, returns in case of, 10, 14, 54.
Duluth, teachers pension system in, 60 f.

Jcjfficiency and pensions, vi, 3f., 7, 13.

Employers and employees, relations between,
and pensions, 3, 5, 6, 12, 15.

Employers, interest of, in pensions, 3f., 6, 15.

England, teachers pension system in, 17, 18.

English civil servants and non-contributory pen-
sions, 5.

Erie, teachers pension system in, 19, 27, 48, 66,
71.

Europe, teachers pension systems in, 4, 17 f.

Expectation of life, 14.

X* a July, protection of, and pensions, x, 7, 12 f.,

14, 15, 26, 29, 38.
Federal War Risk Insurance Act, 4.
Ferguson, James, xi.

Financing of teachers pensions, 22 f., 71 f.
Financing, pension, vi, 8, 25.
"Flat rate," contributions, 11.

Pensions, 50 f.
Forsythe, Grace C, xi.
France, teachers pension system in, 17, 18.
Free pensions. See Non-contributory pensions.
Fundamental principles of pensions, 15 f.
Furst, Dr. Clyde, v.

German Empire, teachers pension system in,

17, 18.
Government pensions, 3.

Great Britain, teachers pension system in, 17.
Greece, teachers pension system in, 17.

.Hall, Samuel S., 37.

Hamilton, teachers pension system in, 64 f.

Harrisburg, teachers pension system in, 66 f.,

71.
Hillegas, Dr. Milo B., 31.
History of pensions, 3.
Holland, teachers pension system in, 17.

Illinois, pension commission reports, 19, 24,
26 f., 72.

Teachers pension system in, 20, 21, 22, 23,
56 f., 70, 72.
Indiana, teachers pension system in, 20, 21, 22,

23, 56 f., 70.
Indianapolis, teachers pension system in, 58 f.,

72.
Industrial relations and pensions, 6.
Industry, pensions in, 3.
Insurance and pensions, 11.

Interest, rate of, relation of, to contributions,
ix, 10.
To pensions, 14.
Interest table, 38.

Ireland, teachers pension system in, 17.
Italy, teachers pension system in, 17, 18.

Japan, teachers pension system in, 17, 18.
Johnson, David B., xi.

jVandel, Dr. I. L., v.

Kansas, teachers pension system in, 58 f., 70.

Kentucky, teachers pension system in, 58 f., 70.

Literature, pensions for, 3.

Louisiana, teachers pension system in, 58 f., 70.

Louisville, teachers pension system in. 58 f.

McClintock's Table of Mortality, ix, 32, 33,

35, 38, 50.
Maine, teachers pension system in, 21, 22, 58 f.,

70.
Maryland, teachers pension system in, 21, 22,

58 f., 70, 72.
Massachusetts, teachers pension system in, 19,

20, 21, 22, 23, 24, 26 f., 48, 60 f., 70, 71, 72.
Massachusetts Teachers Retirement Act, 28.
Medical examination for disability, 21, 32, 51.
Membership in pension systems, 7, 11, 16, 31,

48 f., 53, 70 f.
Michigan, teachers pension system in, 21, 22,

23, 60 f., 71.
Military pensions, 3.

Influence of, 4.
Milwaukee, teachers pension system in, 68 f.
Minneapolis, teachers pension system in, 60 f.
Minnesota, teachers pension system in, 20, 21,

22, 23, 60 f., 70.
Missouri, teachers pension system in, 60 f., 70.
Mobility of employees and pensions, 7.
Montana, teachers pension system in, 20, 21,

22, 23, 60 f., 70.
Moore, Ernest C, xi.
Mortality tables, viii, 7, 14.

Mt. Vernon, teachers pension system in, 62 f.

J\ ational Association of State Universities, 15.
National Council of Education, v.
National Education Association. Committee on
Salaries, Tenure, and Pensions, v, xi.

Meetings of, v.

Proceedings of, v.
Naval pensions, 3.

Influence of, 4.
Nebraska, teachers pension system in, 62 f., 70.
Nevada, teachers pension system in, 20, 21, 22,

23, 62 f., 70.

New Hampshire, teachers pension system in,

21, 22, 62 f., 70.

INDEX

New Haven, teachers pension system in, 56 f.
New Jersey, teachers pension system in, 18, 21,

22, 23, 62 f., 70, 72.
New London, teachers pension system in, 56 f.
New Orleans, teachers pension system in, 58 f.
Newport, teachers pension system in, 66 f.
New York City, teachers pension system in, 19,
26, 27, 29, 48, 64 f., 71, 72.

Pension commission reports, 19, 24 ff., 72.

Teachers Retirement Fund, report on, 24 ff.,
72.
New York State, teachers pension system in,

21,22, 23, 62 f., 70, 71.
New Zealand, teachers pension system in, 17,

18.
Non-contributory pensions, vii, 4 f.

Cost of, viii, 4 f.

Effect on tenure, 5.

English civil servants and, 5.

Influence of, 10.

Objections to, 4 f.
North Dakota, teachers pension system in, 20,

21, 22, 23, 64 f., 70.

Obligation for pension protection, 15.
Ohio, teachers pension system in, 23, 70.
Old age and pensions, vi, 4, 12, 20 f., 32, 49 f.
Omaha, teachers pension system in, 62 f., 71.
Optional membership in pension systems, 7, 11,

16,31, 48 f., 70f.
Options in pension payments, 7, 12 f., 14, 15,

26, 29, 38.
Oregon, teachers pension system in, 64 f., 71.

Paternalism and pensions, 4.
Pennsylvania, teachers pension system in, 19,
20, 21, 22, 23, 24, 29 f., 48, 64 f., 70, 71, 72.

Estimated cost of, 30.
Pension Commissions, reports of, 19, 24 ff., 72.
Pensions, accounting of, 36, 54 f.

Accrued liabilities in, 8f., 10, 33, 39, 49, 53,
71.

Administration of, 10, 20, 48, 70.

Age of retirement and, viii, 11 f., 20 f., 32,
49 f., 71.

Amount of, 10, 20, 32, 50 ff.

As deferred wages, 7.

As subsistence wage, 10.

Attraction of, vi, 3, 4.

Bibliography, 75 ff.

Cash disbursement plan and cost of, 8, 25, 53.

Charity and, 3, 7.

Conditions of, 9.

Contractual right to, 5, 6, 16.

Contributory, 6.

Advantages of, vii, 6, 16.

Cooperation and, vii, 6, 7, 13, 15.

Cost of, vii, 69 ff.

Disability and, 4, 10, 13, 21 f., 26, 28, 29, 32,
51 f., 71.

Efficiency and, 3f., 7, 13.

English civil servants and, 5.

European, 4, 17.

Financing of, vii, 8.

Flat, 50 f.

Flexibility and, 12.

Free, 4 ff.

Fundamental principles of, 15 f.

Geographical distribution, 73.

History of, 3, 18, 70.

Insurance and annuities, 11.

In United States, 4f., 18ff, 70 ff.

Investment and, 7.

Mobility of employees and, 7.

Need for, 3 f.

Non-contributory, 4 f.

Obligation for, 15.

Old age and, 4, 12, 20 f., 32, 49 f.

Options and, 7, 12 f., 14, 15, 26, 29, 38.

Paternalism and, 4.

Purpose of, 3, 12, 15.

Rate of interest and, 14.

Reasons for, vi.

Records, value of, 14.

Relation of, to salary, viii, 10, 15, 50.

Reports and valuations of, 13 f., 36, 54 f.

Reserve system and cost of, 6, 8, 16, 25, 53.

Returns, x, 10, 14, 23, 26, 28, 29, 35, 54, 71.

Salaries and, viii, 3.

Savings and, 7.

Scope of, 7, 10, 12 f.

Sentiment and, 4.

Social philosophy of, 3 ff.

Stipendiary, 15.

Straight, 4 ff.

Teachers. See Teachers pension system.

Tenure and, 3, 4.

Thrift and, 5, 6, 7, 27.
Peoria, teachers pension system in, 56 f.
Philadelphia, teachers pension system in, 66 f.,

71.
Philosophy, social, of pensions, 3 ff.
Portland, teachers pension system in, 64 f.
Porto Rico, teachers pension system in, 72.
Principles of pensions, fundamental, 15 f.
Pritchett, Dr. Henry S., v.
Providence, teachers pension system in, 66 f.
Prussia, teachers pension system in, 18.
Purpose of pensions, 3 f. , 12 f.

Rate of interest and pensions, 14.
Records in pension systems, 14, 55.
Refunds. See Returns.
Reports of pension systems, 13 f., 36, 54 f.
Scope of, 14.

INDEX

Reserve system and cost of pensions, 6, 8, 16,

25, 53.
Resignation, returns in case of, x, 10, 14, 54.
Retirement, age of, viii, x, 11 f., 20 f., 32, 49 f.,
71.

Relation of, to contributions, 10.
To pensions, 11.

Voluntary and compulsory, 12, 50.
Retirement Boards, 20, 48, 70.
Retirement for service, ix, x, 11, 12, 20 f., 32,

49 f.
Returns in teachers pension systems, x, 10, 14,
23, 54, 71.

In Massachusetts, 28.

In New York City, 26.

In Pennsylvania, 29.

In proposed Vermont plan, 35.
Rhode Island, teachers pension system in, 21,

22, 66 f., 70.
Risks of life, protection against, vi, 6, 13.
Rochester, teachers pension system in, 64 f., 71.
Rules, change of, 37, 55.
Russia, teachers pension system in, 17.

St. Louis, teachers pension system in, 60 f.
St. Paul, teachers pension system in, 60 f.
Salaries and pensions, viii, 3, 10, 15, 50.
"Salaries of Teachers and School Officers," v.
Salaries, teachers, 71.

In Vermont, 42 ff.
Salt Lake City, teachers pension system in, 66 f.
Science, pensions for, 3.
Scope of pensions, 7, 10, 12 f., 14, 15, 26, 29,

38.
Scranton, teachers pension system in, 66 f., 71.
Sentiment and pensions, 4.
Service, retirement for, ix, 11, 21, 20 f., 32, 49 f.

And disability allowances, 13, 22, 51 f.
Sex, relation of, to contributions, 10.

To pensions, ix, 9, 14.
Size of retirement board, 20, 48, 70.
Social philosophy of pensions, vi, 3 ff.
South Africa, teachers pension system in, 17,

18.

South America, teachers pension system in, 17.

South Carolina, teachers pension system in,
66 f., 70.

Springfield, teachers pension system in, 64 f.

State officers on retirement boards, vii, 20, 48.

"State Pension Systems for Public School
Teachers," v.

State superintendent of education, and admin-
istration of pensions, 20, 48.

Straight pensions. See Non-contributory pen-
sions.

Strikes and pensions, 6.

Subsistence and pensions, 10.

Swain, Joseph, xi.

Sweden, teachers pension system in, 17.
Syracuse, teachers pension system in, 64 f.

JL angible Rewards of Teaching, The," v.
Teachers in service and pension systems, 33, 39,

49, 53.
Teachers in Vermont, statistics of, 39 ff.
Teachers pension systems, 17 ff.
In Europe, 17 f.
In United States, 18 ff., 70 ff.

Administration of, vii, 20, 48, 70.
Amount of pensions in, 20.
Contributions in, 10, 22 f., 52 f., 71.
Financial unsoundness of, 24.
Financing, 22 f.
Geographical distribution, 73.
Number of, 18f., 70.
Returns, 10, 14, 23, 54, 71.
Scientific basis lacking in, 19 f.
State and local systems, 19, 70.
Summary, 70 ff.
Tabular statement, 56 ff.
Teachers, representation of, on retirement

boards, vii, 20, 70.
"Teachers Salaries and Cost of Living," v.
Tennessee, teachers pension system in, 66 f.,

70.
Tenure and pensions, 4.

And non-contributory pensions, 5.
Terre Haute, teachers pension system in, 58 f.
Tews, J., on German teachers pensions, 17.
Thrift and pensions, 5, 6, 7, 27.
Tiffin, teachers pension system in, 64 f.
Toledo, teachers pension system in, 64 f.
Topeka, teachers pension system in, 58 f., 71.
Transvaal, teachers pension system in, 18.

U niteo States Bureau of Education, reports

on salaries, v.
United States, teachers pension system in, 18ff.,
56 ff., 70 ff., 73.

History of, vi, 18f.

Scientific basis lacking for, 19 f.
Unsoundness, financial, of teachers pension

systems, 24.
Updegraff, Harlan, xi.
Utah, teachers pension system in, 66 f., 70.

Valuations of pension systems, 13 f., 55.

Factors involved in, 14.

In proposed Vermont plan, 36.
Vermont State Teachers Retirement Fund, 20,

21, 22, 36, 68 f., 70.
Vermont, suggested retirement system for
teachers in, 31 ff.

Accounting, 36.

Accrued liabilities, 33.

Actuarial valuation, 36.

INDEX

Administration, 31, 48.
Allowances, 32.
Change of rules, 37.
Contributions, 34, 52 f.
Cost, 33, 39.
Membership, 31, 48 f.
Retirement for age, 32.

For disability, 32.
Theory and principles, 48 ff.
Vermont teachers, number, 39.

Distribution by age and salary, 42 f.

By age and service, 41.

By service and salary, 44 f.

By year of birth, 40.
Service of, outside the state, 46.
Withdrawals of, 47.
Virginia, teachers pension system in, 20, 21, 22,
68 f., 70, 72.

Voluntary or compulsory pension systems, 7 f.,
11, 16, 31,48f., 70 f.

Westchester County, teachers pension sys-
tem in, 64 f., 71.

West Virginia, teachers pension system in,

68 f., 70.
Wheeling, teachers pension system in, 68 f.
Widows, pensions for, 7, 12 f., 14, 15, 26, 29,

38.

Wilmington, teachers pension system in, 56 f.
Wisconsin, teachers pension system in, 21, 22,

23, 68 f., 70.
Withdrawal, rate of, 14.

Returns in case of, 10, 14, 54.
Workmen's compensation laws, 13.

1 oungstown, teachers pension system in, 64 f.

C '

efc

JUSTICE AND THE POOR

A STUDY OF THE PRESENT DENIAL OF JUSTICE TO THE POOR

AND OF THE AGENCIES MAKING MORE EQUAL

THEIR POSITION BEFORE THE LAW

WITH PARTICULAR REFERENCE TO LEGAL AID WORK

IN THE UNITED STATES

REGINALD HEBER SMITH

OF THE BOSTON BAR

BULLETIN NUMBER THIRTEEN

NEW YORK CITY

576 FIFTH AVENUE

D. B. UPDIKE • THE MERRYMOUNT PRESS • BOSTON

ANALYSIS OF CONTENTS

PAGE

Foreword ix

Introduction xi

PART I. THE EXISTING DENIAL OF JUSTICE TO THE POOR

CHAPTER

I. Freedom and Equality of Justice — the Ideal 3

II. Denial of Justice — the Fact 6

III. The Defects in the Administration of Justice 13

1. Preliminary Definitions 13

2. Substantive Law 13

3. Defects in Administration 15

4. The Particular Defects 16

IV. The First Defect— Delay 17

1. Denial of Justice through Delay 17

2. The Nature of Delay 18

3. The Elimination of Delay 19
V. The Second Defect — Court Costs and Fees 20

1. Nature and History of Costs and Fees 20

2. The Present Situation 22

3. Costs in the Trial Court 24

4. Costs on Appeal 27

5. Witnesses, Briefs, and Transcripts 27

6. Denial of Justice through Costs 28

7. Summary 30
VI. The Third Defect— Expense of Counsel 31

1. Essential Nature of the Lawyer's Function 31

2. Inability of the Poor to Pay for Counsel 33

3. Cost of Counsel the Fundamental Difficulty 33

CONTENTS

PART II. AGENCIES SECURING A MORE EQUAL ADMINISTRATION

OF THE LAWS

VII. The Nature and Position of the Remedial Agencies 37

1. Introductory 37

2. Classification of the Agencies 38

3. Tests Applied to the Agencies 39
VIII. Small Claims Courts 41

1. Inadequacy of the Common Law Machinery 41

2. The Kansas Small Claims Courts 43

3. The Portland Small Claims Court 46

4. The Cleveland Small Claims Court 48

5. The Chicago Small Claims Court 51

6. Future Extension of Small Claims Courts 52

7. Collateral Functions 56

1. Assistance to Parties by Clerks 56

2. Payment of Judgment by Instalments 57

3. Function of Court Trustee 57

4. Control over Ejectment Proceedings 59

5. Conciliation 59
IX. Conciliation 60

1. Definition 60

2. History 61

3. Conciliation in Europe 61

4. Conciliation in the United States 63

5. Significance of Conciliation 66

6. Future of Conciliation 66
X. Arbitration 68

1. The Rise of Arbitration 68

2. Judicial Arbitration 71

3. Future of Judicial Arbitration 71

4. Summary 72

CONTENTS v

XL Domestic Relations Courts 73

1. The Present Situation 73

2. Increasing Use of Criminal Remedies 74

3. Significance of Domestic Relations Courts 76

4. Conciliation in Domestic Relations 80

5. Future Development 81
XII. Administrative Tribunals 83

1. Delays and Costs under Workmen's Compensation Acts 83

2. Attorneys under Workmen's Compensation Acts 85

3. Future of Administrative Tribunals 90

4. The Interstate Commerce Commission 92

5. Summary 93

XIII. Administrative Officials 94

1. Definition 94

2. General Assistance by Administrative Officials 94

3. Legal Services in Litigation 95

4. Collection of Wages by Administrative Officials 96

5. Future Development 98

XIV. Assigned Counsel 100

1. Assignment of Counsel in Civil Cases 100

2. Assignments in Divorce: Divorce Proctors 102

3. Assignment of Counsel in Criminal Cases 103
XV. The Defender in Criminal Cases 105

1. Preliminary Definitions 105

2. The Argument 107

3. The Existing System 107

4. The System of Assigned Counsel 111

5. The Genesis of the Defender Plan 115

6. The Defenders and their Work 1 17

7. Further Results of the Defenders 121

8. Defenders in the Lower Courts 124

vi CONTENTS

9. Future Development of the Defender 127

XVI. Legal Aid Organizations 128

PART III. LEGAL AID WORK IN THE UNITED STATES

XVII. Origin and Development of Legal Aid Organizations 133

1. Preliminary 133

2. The First Period: 1876 to 1899 134

3. The Second Period: 1900 to 1909 140

4. The Third Period: 1910 to 1913 145

5. The Fourth Period : 1914 to 1918 147

6. Review . 148
XVIII. Work of the Legal Aid Organizations 150

1. Introductory 150

2. The Total Work 151

3. Nature of the Work 152

4. Sources of the Cases 158

5. Disposition of the Cases 159

6. Principles in the Conduct of the Work 161

7. The Charging of Fees 165
XIX. Types of Legal Aid Organizations 169

1. The Five Types 169

2. Specialized Organizations 169

3. Legal Aid by Employees and Employers 171

4. In General of the Five Types 173

5. Independent versus Departmental Organizations 176

6. Public versus Private Organizations 180
XX. Present Position of Legal Aid Work 187

1. Present Extent of the Work 187

2. Legal Aid Staffs 192

3. Poor Finances 193

4. Lack of Central Control 197

CONTENTS vii

XXI. Legal Aid and the Law 200

1. Legal Aid and Legislation 200

2. Legal Aid and the Common Law 206
XXII. Legal Aid and the Community 210

1. Community Service 210

2. War Work 212

3. Preventive Law 214

4. Good Citizenship 217

XXIII. Legal Aid and the Organized Charities 219

1. The Volunteer Counsel Plan 219

2. Service by Legal Aid Organizations 223

3. Cooperation 224

XXIV. Legal Aid and the Bar 226

1. Legal Aid Services to the Bar 226

2. The Lawyer's Obligation to the Poor 230

3. Services of the Bar to Legal Aid Work 234

4. Financial Support by the Bar 237
XXV. A More Equal Administration of Justice 240

1. Immediate Constructive Action 240

2. A More Efficient Legal Aid Work 244

3. Legal Aid under Judicial Control 246

4. Conclusion 249

APPENDIX

Note to Statistical Tables 252

Table I, showing Cases received by Legal Aid Organizations

Table II, showing Amounts collected for Clients bv Legal Aid Or-
ganizations

Table III, showing the Expenses of Legal Aid Organizations

INDEX 253

FOREWORD

THIS book began in a study of Legal Aid Societies designed to secure
thorough information and a just estimate of value for the benefit of those
who are called upon from time to time to contribute to their support.

The work has grown into a systematic treatise and practical handbook upon the
Administration of Justice in the United States in the direction which is at this time
of the most critical importance. It is full of trustworthy information and suggestion,
and should be of great value to the multitude of Americans who are interested in
the Americanization of the millions of foreigners who have immigrated to this
country, and who fail to understand or who misunderstand American institutions.
It should be useful to the members of the American Bar, who during the past few
years have been gradually awakening to a sense of their responsibility for the admin-
istration of law in general, beyond the interests of the particular cases in which they
are engaged. This subject was under consideration in the Conference of Bar Associ-
ations at Saratoga in September, 1917, and I commend this book to the attention of
all the gentlemen who were interested in that discussion.

New projects are continually suggested for improving the condition of the poor
by the aid of government, and as to many of them there is a debatable question
whether they come within the proper province of government and whether official
interference will not in the long run do more harm than good to the beneficiaries
and to the community. No one, however, doubts that it is the proper function of
government to secure justice. In a broad sense that is the chief thing for which gov-
ernment is organized. Nor can any one question that the highest obligation of govern-
ment is to secure justice for those who, because they are poor and weak and friend-
less, find it hard to maintain their own rights. This book shows that we have not been
performing that duty very satisfactorily, and that we ought to bestir ourselves to
do better.

I do not think that we should be over-harsh in judging ourselves, however, for the
shortcomings have been the result of changing conditions which the great body of
our people have not fully appreciated. We have had in the main just laws and honest
courts to which people — poor as well as rich — could repair to obtain justice. But
the rapid growth of great cities, the enormous masses of immigrants (many of them
ignorant of our language), and the greatly increased complications of life have cre-
ated conditions under which the provisions for obtaining justice which were formerly

x FOREWORD

sufficient are sufficient no longer. I think the true criticism which we should make
upon our own conduct is that we have been so busy about our individual affairs that
we have been slow to appreciate the changes of conditions which to so great an extent
have put justice beyond the reach of the poor. But we cannot confine ourselves to
that criticism much longer; it is time to set our own house in order. And as we do
so we should recognize with gratitude the noble and unselfish men and women whom
this book shows to have been devoting themselves to the task which most of us have
been neglecting.

Elihu Root.

July, 1919-

INTRODUCTION

THE present Bulletin constitutes the second in a series of studies of legal educa-
tion and cognate matters that is in course of publication by the Carnegie
Foundation, under the general charge of Mr. Alfred Z. Reed. The first number,
published before the war, was the report of Professor Redlich upon the Case Method.
The present volume will be followed by a detailed study of law schools and exami-
nations for the bar. A large number of persons have cooperated in the general under-
taking, and the mass of material is not only enormous, but complex.

It was inevitable that any such comprehensive study should touch at many points
the administration of the law itself and the effects of this administration upon the
people for whose protection and contentment law and courts exist. The presentation
of the present report as a special bulletin in this series was suggested in the first
instance by the application of certain legal aid societies to the Carnegie Corporation
for grants of funds. The trustees of the Corporation, while disposed to look upon the
work of these bodies as important, felt that a thoroughgoing report on the whole
question of legal aid should precede any such action on their part. They agreed,
therefore, to defray the expense of such a report if prepared with the cooperation of
the Carnegie Foundation in conjunction with its already partially completed enquiry.
The work, including the visitation of all legal aid societies in the United States, and
the reduction of the material into its present form, has been accomplished in a most
careful and discriminating fashion by Mr. Reginald Heber Smith, of the Boston bar.
Although primarily designed to deal only with legal aid work, the scope of the study
inevitably broadened. It proved impossible to consider existing legal aid societies
without taking into account at the same time other agencies which experience has
suggested in the effort to make the administration of justice direct, simple, and ac-
cessible alike to rich and poor. The present report deals, therefore, with the whole
question of administration of the law as it affects members of the body politic who
by reason of poverty, ignorance, or lack of knowledge of the language are at a dis-
advantage in the effort to secure justice as between man and man in the various
disputes that arise in our present complicated industrial and social relations.

The study touches so closely the source of much current discontent and points the
way to constructive action so important and yet so feasible, that its publication now
is especially timely. There never was a time when it was more important to pro-
vide machinery that shall be adequate to accomplish in fact that justice at which the
law aims and for whose attainment amongst men it was established. It is not enough
for the law to intend justice. It must be so administered that for the great body of
citizens justice is actually attained. Be the law never so good in theory, uncertain or
dilatory administration, through the present cumbersome or defective machinery,
goes far to defeat its aims. The widespread suspicion that our law fails to secure jus-
tice has only too much basis in fact. If this suspicion is allowed to grow unchecked,

xii INTRODUCTION

it will end by poisoning the faith of the people in their own government and in law
itself, the very bulwark of justice.

That justice can be attained only through the law is made clear at the outset of
this report. Human experience in all ages and in all countries proves that our only
hope to attain a fair equality of justice for every member of society, wise or igno-
rant, good or bad, rich or poor, lies in a system of law based on principles long tried
and administered by those removed from the pull of personal interest. A citizen of
any state may have a reasonable confidence in justice for himself only so long as his
rights and privileges are defined by the rules of law and not by the whim of any in-
dividual. Freedom and justice for the individual member of the body politic can be
hoped for only through the reign of law, and not through the favoritism of any ruler
or class or faction. No lesson of human society can be more clear than this, that law
is nothing other than the crystallized experience of mankind, embodied in principles
that aim at the attainment of justice as between man and man and as between soci-
ety and the individual.

It follows directly from this conception of law, however, that in the process of social
development some readjustment of the law, in the light of altered conditions and
widened experience, is from time to time required. Otherwise our inherited body of
legal principles and our ideals of abstract justice are in danger of growing apart. If the
task of bringing them together again should by any chance be deferred until a large
element of our population suffer long continued grievances under the existing law, a
temper of mind is created that does not make for sane reform by orderly methods.

The conclusion to which the author of this study is led is that in so far as con-
cerns what is technically known as the substantive law, the poor are at no special
disadvantage as compared with the rich. If no more were required for the even-handed
distribution of justice than this, that the rights of all men, rich or poor, strong or
weak, should be impartially and equally defined under the law, then democracy has
come near to realizing its ideal. No special procedure for enforcing this substantive
law needs to be invoked when it is well settled, and is well known, and no dispute
exists in regard to the facts and all parties affected are strictly law abiding. For-
tunately the great number of our activities are conducted in this manner.

There is, however, a class of activities, exceptional yet enormous in the aggregate,
where these conditions do not obtain — where the substantive law, determining the
point at issue, is not settled, or if settled, is not known to the individual; or where
the parties affected disagree, in good faith, as to the facts upon which their relative
rights depend ; or where one or the other of them does not respect the law, whether
from impatient desire to remedy what he conceives to be its defects, or more fre-
quently from naked self-interest. These are the cases where justice has to be actu-
ally administered with the aid of lawyers and of courts. If for any reason this neces-
sary machinery of justice cannot be employed, then the theoretical protection that
the individual possesses under the law is of no practical use to him.

INTRODUCTION xiii

It is on this side that the author shows the danger to lie. In the law that fixes
and prescribes the machinery through which rights are enforced or defended — that
is to say, in what is technically known as procedural or adjective, as distinguished
from substantive law — he finds grave defects. He shows how, not because any one
has deliberately intended to do wrong, but because no one has squarely faced the
needs of our new immigrant citizens, our increasing class of wage-earners, and of our
vast urban populations, the expense and delay needed to obtain legal relief are fre-
quently such that the poor cannot afford it. Many are actually deprived of their
rights. Still others believe that they are so deprived and cherish grievances that a
less expensive and more prompt administration of the machinery of justice might
serve to dispel. Even if they are not quite sure that they are in the right, the mere
fact that they cannot have their claims quickly passed upon by an impartial tribunal
under simple procedure seems to them an unjust discrimination, devised by the rich
to oppress the poor. Under these conditions the claim of the demagogue or of the
sincere but mistaken doctrinaire that justice can be made to order by some new form
of social machinery falls upon ready ears. The long lesson of human experience in
the effort to attain justice is easily forgot, and those who are discontented by reason
of real or fancied ills and who are more directly interested than any other members
of the body politic in a freedom defined by law are ready to have their civil liberty
defined in terms of personal influence or of class prejudice.

How much the present weaknesses in the administration of the law work against
the interest of the poor as such it is of course impossible to say. It would be a mistake
to assume that the cost of litigation and the law's delay benefit the rich exclusively.
In a great number of cases they work to the advantage of the dishonest poor. The
deserving poor man is helpless to obtain speedy justice from any one, poor or rich.
The question is not primarily one as between rich and poor, but concerns rather the
fundamental necessity in a free country to place justice, so far as it is humanly possible
to do so, within the reach of those who occupy any station in life. Our civilization
rests upon an honest and sincere attempt to realize this ideal.

While the poor, like the rich, come to serious disputes with their fellow-men and
with the agencies in the social order with which they have relations in many ways,
the great proportion of questions which they desire to bring to settlement lie in a
few fields — questions concerning wages, those resulting from injury while in employ-
ment, and those which originate in the family relations and affect directly the hap-
piness of wives and children and the integrity of the home. The very natural failure
of the administration of the law to keep pace with the rapid industrial transforma-
tion of the country is the source of much of the complaint of the poor and partic-
ularly of the poor man who is also an alien, touching all the matters relating to his
employment, his citizenship, and the disputes which arise in his domestic relations.

The study here presented sets forth in simple and non-technical language, first the
defects in the administration of the law which work in effect a denial of justice to the

xiv INTRODUCTION

poor or to the ignorant; and secondly, the agencies, supplementary to the existing
machinery, whose object is to remedy these defects.

The important defects are three — delay, court costs and fees, and the expense of
counsel. The agencies suggested to remedy these defects fall into two groups accord-
ing as the nature of the case admits of settlement without legal counsel or, on the
other hand, requires counsel for the full protection of the disputants.

In the first group of remedial agencies are placed the small claims court, the agen-
cies for conciliation and arbitration, the domestic relations courts and administrative
tribunals, and all officials authorized to deal promptly with disputants. For the other
group of cases — those for whom legal counsel is necessary — the present report dis-
cusses the defender in criminal cases, the assignment of counsel, and finally and most
exhaustively the legal aid organizations.

The outcome and the object of the report is the effort to prove that these various
agencies, if properly articulated with the existing system of the administration of jus-
tice, can be made to secure, so far as human means can do, the practical equality of
all men before the law and to afford to all citizens without regard to wealth or rank
or race the means for a prompt, inexpensive, and fair adjudication of their complaints.

For no group in the citizenship of the countrv is this more needed than in the
case of the great mass of citizens of foreign birth, ignorant of the language, and help-
less to secure their rights unless met by an administration of the machinery of justice
that shall be simple, sympathetic, and patient. To such the apparent denial of jus-
tice forms the path to disloyalty and bitterness.

This report, prepared with great care and stated in moderate terms, deserves at the
hands of the members of the bar serious and sympathetic attention. If those who
officially represent the law do not bend their energies and give their best thought to
make the administration of justice fair, prompt, and accessible to the humblest citizen,
to what group in the body politic may we turn with any hope that this matter will
be dealt with wisely and justly ?

The world is to-day filled with the word "democracy." Sometimes it is used to
denote a government in which the civil rights of the individual rest upon a consti-
tutional guarantee, sometimes to describe a class rule more autocratic than that of
the Czar. An autocracy can exist without law, but a free democracy cannot. The
very existence of free government depends upon making the machinery of justice
so effective that the citizens of the democracy shall believe in its impartiality and
fairness.

Henry S. Pritchett,

President of the Carnegie Foundation.

June, 1919.

PART I
THE EXISTING DENIAL OF JUSTICE TO THE POOR

Chapter I
FREEDOM AND EQUALITY OF JUSTICE— THE IDEAL

To no one will we sell, to no one will we refuse or delay, right or justice.
Magna Carta, cap. 40.

FREEDOM and equality of justice are twin fundamental conceptions of Amer-
ican jurisprudence. Together they form the basic principle on which our entire
plan for the administration of justice is built. They are so deep-rooted in the
body and spirit of our laws that the very meaning which we ascribe to the word jus-
tice embraces them. A system which created class distinctions, having one law for the
rich and another for the poor, which was a respecter of persons, granting its pro-
tection to one citizen and denying it to his fellow, we would unhesitatingly condemn
as unjust, as devoid of those essentials without which there can be no justice.

From the dawn of Anglo-Saxon legal history, this idea has been manifest. The
earliest laws continually directed that justice be done alike to rich and poor.1 The
equal right to law was asserted in the Charter of Liberties of Henry II.2 The idea
received its classic embodiment and statement in the fortieth paragraph of Magna
Carta, where was inscribed "nulli vendemus, nulli negabimus, aut drfferemus, rectum
autjusticiam."" As a purely historical fact this did not signify, or inaugurate, an era
of absolute freedom of justice, but it was a first step in that direction. Its supreme
importance, however, lies in the tradition3 which gradually attached to it, and which
glorified the idea into an ideal — an ideal which steadily persisted in men's minds
throughout five centuries, and which was brought by the colonists to the New World.4
In the constitutional conventions which followed the American Revolution the
ideal was given concrete expression in the various state Bills and Declarations of
Rights.5 The Massachusetts Constitution, adopted in 1780, declared:6

"Every subject of the Commonwealth ought to find a certain remedy, by hav-
ing recourse to the laws, for all injuries or wrongs which he may receive in his
person, property, or character. He ought to obtain right and justice freely, and
without being obliged to purchase it; completely, and without any denial;
promptly, and without delay; conformably to the laws."

As state after state has been added to the Union, its people, in constitutional assem-
bly, have written the same declaration into their fundamental law. In New York the

1 Pound: Causes of Popular Dissatisfaction with the Administration of Justice, 29 Am. Bar Ass'n R. (1906) 395;
citing Secular Ordinance of Edgar, cap. I ; Secular Ordinance of Cnut, 2; Laws of Ethelred, VI, 1; Laws of Ed-
ward, Preface.

2 Stimson: Federal and State Constitutions (1908), page 16.

3 McKechnie: Magna Carta (1914), pages 127, 395-398.

4 For a general discussion of the influence of Magna Carta on American institutions see H. D. Hazel tine: Influence
of Magna Carta on American Constitutional Development, 17 Columbia L. Rev. (1917) 1.

0 Our American Bills of Rights bear a direct relation to Magna Carta. See James Q. Dealey : Growth of American
State Constitutions — 1776 to 1914, page 35. Bryce aptly called them "the legitimate children of Magna Carta."

1 American Commonwealth, 422.

6 Part I : Declaration of Rights, Article XI.

4 DENIAL OF JUSTICE TO THE POOR

declaration is contained in a statute,1 but this is exceptional. To-day, the constitu-
tion of nearly every state, by express provision of the Bill of Rights, guarantees
the freedom and equality of justice.2 The Fourteenth Amendment to the Constitu-
tion of the United States adds to the state guaranty the authority of the supreme
law of the land.3

As a matter of law, the right stands inviolable. It is recognized and established by
the highest possible authority. But that is not all. Its incorporation into the Bills
of Rights transformed the principle from merely a legal or juristic conception to a
political consideration of supreme importance. Not only was the right to freedom and
equality of justice set apart with those other cardinal rights of liberty and of con-
science which were deemed sacred and inalienable, but it was made the most important
of all because on it all the other rights, even the rights to life, liberty, and the pur-
suit of happiness, were made to depend.4 In a word, it became the cornerstone of the
Republic.

Ours was designed to be, and is, a government of laws and not of men. Under a
government so constituted the right of the individual to life, to freedom of motion,
of thought, of conscience, to his children, to his home, and the social interest in se-
curing these things to human beings all depend, in last resort, entirely and absolutely
on law. This is recognized by our constitutions, and has been repeatedly emphasized
by decisions of courts, in the speeches of statesmen, and in treatises on government.5
The New Hampshire constitution,6 which is typical, thus expresses it:

"It is essential to the preservation of the rights of every individual, his life, lib-
erty, property, and character, that there be an impartial interpretation of the laws
and administration of justice."

To secure impartial laws and an equal administration of justice, and thereby to
make possible the enjoyment of the rights and opportunities contemplated by a demo-
cracy, the State itself exists.7 The best welfare and the greatest possible happiness of
the men, women, and children of the nation is the ultimate goal. The State is their
servant and its government the means by which the desired end can best be obtained.

Concerning these fundamentals there is no dispute, at least within America. Their
extended statement here would be superfluous but for the fact that, although the de-
pendency of every right and interest on law is recognized, the consequences which in-

1 Civil Rights Law, § 10 ; I. Birdseye's dimming and Gilbert: Consolidated Laws of New York, page 620.

2 For citations to each state constitution see Stimson : Federal and State Constitutions, pages 148, 149.

3 Root : Addresses on Government and Citizenship (1916), page 460.

4 "These cardinal rights may be divided into the four great realms of Rights to Liberty, to Property, to Law, and
Rights of the People as against the Government. Logically and historically the first is the right to law, for there
can be no property, no government, and no real liberty without law." Stimson : Federal and State Constitutions,
page 10.

s See Cotting v. Kansas City Stock Yards Co. 183 U. S. 79, 84. Wheeler: American Liberty Protected and Ruled by
Law, 48 Am. L. Rev. (1914) 1. Root: Addresses on Government and Citizenship, pages 98, 106, 640. 73 Annals of the
American Academy of Political and Social Science (1917), 137. Lyman Abbott: Report of Speeches at New York
Legal Aid Society Banquet (1901), page 31.

6 Constitution of New Hampshire (1792), Part I, Bill of Rights, § 36.

7 "That to secure these rights governments are instituted among men." Declaration of Independence.

FREEDOM AND EQUALITY OF JUSTICE 5

evitably flow from such a form of government seem not to be generally appreciated.

These consequences, summarily stated, are: — First, there can be no political, so-
cial, or economic equality, no democracy, unless the substantive law by fair and
equitable rules gives reality to equality by making it a living thing. Second, the
substantive law, however fair and equitable itself, is impotent to provide the neces-
sary safeguards unless the administration of justice, which alone gives effect and force
to substantive law, is in the highest sense impartial. It must be possible for the hum-
blest to invoke the protection of law, through proper proceedings in the courts, for
any invasion of his rights by whomsoever attempted, or freedom and equality vanish
into nothingness.

To withhold the equal protection of the laws, or to fail to carry out their intent
by reason of inadequate machinery, is to undermine the entire structure and threaten
it with collapse. For the State to erect an uneven, partial administration of justice
is to abnegate the very responsibility for which it exists, and is to accomplish by in-
direction an abridgment of the fundamental rights which the State is directly for-
bidden to infringe. To deny law or justice to any persons is, in actual effect, to outlaw
them by stripping them of their only protection.

It is for such reasons that freedom and equality of justice are essential to a demo-
cracy and that denial of justice is the short cut to anarchy.

Chapter II
DENIAL OF JUSTICE— THE FACT

Of all the questions which are before the American people, I regard no
one as more important than the improvement of the administration of jus-
tice. We must make it so that the poor man will have as nearly as possible
an equal opportunity in litigating as the rich man, and under present condi-
tions, ashamed as we may be of it, this is not the fact. Ex-Presdient Taft
in an Address before the Virginia Bar Association.

THE inhabitants of the American colonies learned from the tyrannies and arbi-
trary conduct of George III and the Royal Governors what denial of justice
meant, and it incited them to rebellion.1 In their first law-making, after attaining
independence, they declared that justice must be equal and accessible to all. This
principle they regarded, not as an utopian ideal, but as the indispensable safeguard of
their hard won liberties, and they proceeded to give it immediate effect. Their deter-
mination is still evidenced by our constitutional provisions2 protecting persons accused
of crime, which were originally written by the framers to eliminate from our institu-
tions the most glaring inequality of the English law.3

By contrast with the complexity of the present task, their problem was relatively
simple. They were a vigorous, self-reliant, homogeneous people, possessed of average
intelligence and shrewd common sense, living mostly in small towns and agricultural
communities, so that there was not much litigation. As only the simplest sort of judi-
cial machinery was required, mechanical defects, with their attendant delays, were at
a minimum. Inexpensive justice was demanded and was secured — sometimes by the
doubtful economy of providing cheap judges.4 In the lower courts where the smaller
cases were heard the poor could plead their own causes. This seemed natural because
it had been done very largely during the colonial era,5 and it was possible because
there was little law and few precedents; in fact, many of the judges were laymen.6
This early administration of justice was in many respects inferior to our present sys-
tem, but whatever its shortcomings it at least made some provision for the smaller
cases and there was no insuperable barrier of expense fixed between the poor and
the courts.

The forces, in short, which have caused our administration of justice to break
down as to the small causes and the claims of the poor, are not inevitable, or inex-

1 Declaration of Independence, Paragraphs 3, 4, 11, 17, 20, 21, and particularly Paragraph 10 — " He has obstructed
the administration of justice by refusing his assent to laws establishing judiciary powers."

2 United States Constitution, Amendments V, VI, and VIII. For citations to the state provisions, and for a com-
plete discussion, see Stimson: Federal and State Constitutions, pages 164 et seq.

3 The English criminal law of the eighteenth century not only inflicted extreme punishments but deprived pris-
oners of a fair trial, as by forbidding them counsel for their defence. This injustice was ameliorated in 1836 and
abolished by the Prisoners' Defence Act of 1903.

4 American Judicature Society, Bulletin VIII (1915), page 26.

6 Lawyers had repeatedly been excluded by assembly enactments from appearing in the courts. Warren: History
of the American Bar (1913), pages 4, 106.

8 Ibid., page 16.

DENIAL OF JUSTICE 7

tricably interwoven in the development of our institutions, or even of long duration,
but are rather the result of the tremendous changes which have taken place in every
phase of the nation's life.

These changed conditions, to which our rigid court organization with inflexible
machinery was unable to adapt itself, are mainly due to immigration, the rise of the
wage-earning class, and above all, to the startling growth of urban population with
all that it entails. With the great cities came the infinite complexity of modern
life, of business, and of affairs in general which breeds litigation.1 The law itself
became highly complicated. With thirteen thousand decisions of courts of last resort
being made each year and twelve thousand laws annually enacted by the legislatures,
no man could determine his rights without employing attorneys.2 The legislative
attempt to fix the machinery of justice in all its details made of procedure a maze
which precluded litigation unless the suitor could engage counsel to guide his case
through all the technicalities. The first attempt to meet the enormous pressure of
litigation was by multiplication of courts, which served only to confound the confu-
sion3 by injecting additional questions of jurisdiction, venue, and procedure4 into a
system already enmeshed in its own superabundant technicalities. The situation is
summarized by Dean Pound in these words:5

"Our judicial organization and the great body of our American common law are
the work of the last quarter of the eighteenth century and the first half of the
nineteenth century. On the other hand our great cities and the legal and social
problems to which they give rise are of the last half of the nineteenth century,6
and indeed the pressing problems do not become acute until the last quarter of
that century."7

One of these problems was "to make adequate provision for petty litigation
in communities where there is a huge volume of such litigation which must be
dealt with adequately on pain of grievous denial of justice; to provide for dis-
posing quickly, inexpensively, and justly of the litigation of the poor, for the
collection of debts in a shifting population, and for the great volume of small
controversies which a busy, crowded population, diversified in race and language,
necessarily engenders.'"

The realization that there are grave defects in the administration of justice came
but slowly. Had not enough laws been passed, enough courts organized, court houses
built, judges, clerks, and officers provided and paid salaries — what more was neces-
sary? When Roscoe Pound delivered his epoch-making address on "The Causes of
Popular Dissatisfaction with the Administration of Justice" before the American

1 Preliminary Report on Efficiency in the Administration of Justice, for the National Economic League, page 29;
American Judicature Society, Bulletin /(1914), page 1; represented in 52 Ann. Am. Ac. Pol. & Soc. Science (1914), 208.

: Root: Addresses on Government and Citizenship, page 159.

3 American Judicature Society, Bulletin FT (1915), page 18; Pound: Administration of Justice in the Modern City,

26 Harvard L. Rev. (1913) 308, 313.

* 73 Ann. Am. Ac. Pol. & Soc. Science (1917), 15. s Pound : op. cit, pages 303, 310, 315.

6 New York did not have a population of one million until 1880.

7 It is interesting to note that organized legal aid was first considered in 1875.

8 DENIAL OF JUSTICE TO THE POOR

Bar Association in 1906,1 his was like a voice crying in the wilderness. From the
reported discussion,2 one would judge that most of the lawyers present were incred-
ulous, and that not a few were indignant at the intimation that our justice was not
closely akin to perfection itself.

In the twelve years that have followed, the evidence has become overwhelming. The
facts, though not the causes which underlie them, are well known. The administration
of American justice is not impartial, the rich and the poor do not stand on an equality
before the law, the traditional method of providing justice has operated to close the
doors of the courts to the poor, and has caused a gross denial of justice in all parts
of the country to millions of persons.

Sweeping as this indictment may appear, it is substantiated by ample authority.3
A few statements deserve to be presented here.

" If there is one sad anomaly that should stand out in our present days of con-
scientious self-searching, it is the harsh fact that, with all our prating about jus-
tice, we deliberately withhold it from the thousands who are too poor to pay
for it."4

"The sources from which industrial unrest springs are: ... 3. Denial of justice
in the creation, in the adjudication and in the administration of law."5

"The equal administration of the laws is a right guaranteed by the funda-
mental law of the land ; and yet no person will deny that this privilege is more
honored in the breach than in the observance; for there are very many people
in every American community who, through ignorance of their rights or their
inability to pay the imposts levied by the state as a condition precedent to the
pursuit of justice in the courts, are constantly being denied that equal admin-
istration of the laws and the justice that is supposed, logically, to follow it."6

"Taking the country as a whole it is so obvious that we have almost ceased
to remark it, that in petty causes, that is, with respect to the every day rights
and wrongs of the great majority of an urban community, the machinery
whereby rights are secured practically defeats rights by making it impracti-
cable to assert them when they are infringed. Indeed in a measure this is so in
all causes. But what is merely exasperating in large causes is downright pro-
hibitive in small causes. While in theory we have a perfect equality, in result,
unless one can afford expensive and time-consuming litigation, he must con-
stantly forego undoubted rights, to which in form the rules of law give full
security but for which, except where large sums are involved, the actual conduct
of litigation affords no practicable remedy."

1 29 Am. Bar Ass'n R. (1906) 395. 2 Ibid., beginning page 55.

3 Hyde : Reorganization of the Bar, 8 Illinois L. Rev. (1913) 241; San Francisco Recorder of July 13, 1914 (editorial) ;
Proceedings of Virginia Conference of Charities and Correction (1916), 78; Report of Proceedings of Tliird Confer-
ence of National Alliance of Legal Aid Societies (1914), 36 ; Wood: Position of the Public Defender in the Admin-
istration of Jtistice (1914), 23 ; 16 Boston Legal Aid Rep. (1915) 8; 1 San Francisco L. A. R. (1916) 3; 106 Outlook (1914),
660, 661; 26 World's Work (1913), 663; Commercial Club of Nashville Tattler of July, 1916, page 21; 73 Ann. Am. Ac.
Pol. & Soc. Science (1917), 5, 106, 140.

4 American Judicature Society, Bulletin VIII (1915), page 24.

B Summary of the Manly Report of the United States Commission on Industrial Relations (1915), 5; see also
page 9.

6 San Francisco Recorder of November 6, 1916, page 1.

DENIAL OF JUSTICE 9

"Many causes have contributed to this neglect which disgraces American jus-
tice."1

The majority of our judges and lawyers view this situation with indifference. They
fail to see behind this denial of justice the suffering and tragedy which it causes, the
havoc it plays in individual lives, and its influence in retarding our Americanization
program. "The judicial department,'''' said Chief Justice Marshall,2 "comes home in
its effects to every man's fireside. It passes on his property, his reputation, his life,
his all." Because law is all-embracing, the denial of its protection means the destruc-
tion of homes through illegal foreclosures, the loss through trick or chicanery of a
lifetime's savings, the taking away of children from their parents by fraudulent guar-
dianship proceedings.3 Hundreds of thousands of men, many of them immigrants,
have been unable to collect their wages honestly earned.4

Denial of justice is not merely negative in effect; it actively encourages fraud
and dishonesty. Unscrupulous employers, seeing the inability of wage-earners to
enforce payments, have deliberately hired men without the slightest intention of
paying them.3 Some of these employers are themselves poor men, who strive in this
way to gain an advantage. The evil is not one of class in the sense that it gives the
poor over to the mercies of only the rich. It enables the poor to rob one another; it
permits the shrewd immigrant of a few years' residence to defraud his more recently
arrived countrymen. The line of cleavage which it follows and accentuates is that
between the dishonest and the honest. Everywhere it abets the unscrupulous, the
crafty, and the vicious in their ceaseless plans for exploiting their less intelligent and
less fortunate fellows. The system not only robs the poor of their only protection, but
it places in the hands of their oppressors the most powerful and ruthless weapon ever
invented.

The law itself becomes the means of extortion. As Lord Brougham said of the
English administration of justice in 1800, it puts "a two-edged sword in the hands
of craft and oppression." From the cradle to the grave the poor man is the prey of
a host of petty swindlers,6 who find it easy, through such devices as fraudulent
assignments, trustee process, or garnishment of wages for fictitious debts,7 to rob and

1 Pound: Administration of Justice in the Modern City, 26 Harvard L. Rev. (1913) 316.

2 John Marshall, 10 American Statesmen Series, 249.

3 For such cases see 1 Kansas City L. A. R. 7; 7 Detroit L. A. R. 9, case 9; 14 Boston L. A. R. 19; 3 Buffalo L. A. R.
cover.

4 2 Kansas City L. A. R. 5; 3 Detroit L. A. R. 11, case 9; 4 Detroit L. A. R. 8, case 5; 32 Minneapolis L. A. R. 26;
Newark L. A. R. for 1916, 4; 16 Louisiana Bar Ass'n R. 331 ; 2 Hartford L. A. R. 6: 19 New York Educational Alliance
R.32.

6 40 N. Y. L. A. R. 16, 32.

6 St. Louis Bar Ass'n L. A. R. 1-3.

7 For a complete discussion of such abuses in Missouri see 1 Kansas City L. A. R. 14-20 ; numerous other instances
are found in 2 Boston L. A. R. 7 ; Boston L. A. S. case 9262, case 6750 of 1918 ; Pittsburgh L. A. S. Prospectus (1909),
Purpose Clause of Constitution ; 4 Pittsburgh L. A. R. 12, 13 ; 1 Philadelphia L. A. R. 2; Portland (Oregon) Social Ser-
vice Bureau Report (1913), 47; St. Louis Bar Ass'n L. A. R. 2.

An investigation in Omaha disclosed a case in which the defendant's summons had been left in his woodpile. By
the time he discovered it, a default judgment had been entered.

10 DENIAL OF JUSTICE TO THE POOR

despoil. There exist to-day businesses established, conducted, and flourishing on the
principle that as against the poor the law can be violated with impunity because
redress is beyond their reach. It is this situation which allowed such unrestrained
abuse of the laws regulating the assignment of future wages that a sort of quasi-
slavery resulted, which brought the loan shark into being, and permitted flagrant
usury to grow into a monstrous thing.1

The effects of this denial of justice are far reaching. Nothing rankles more in the
human heart than the feeling of injustice. It produces a sense of helplessness, then bit-
terness.2 It is brooded over. It leads directly to contempt for law, disloyalty to the gov-
ernment, and plants the seeds of anarchy.3 Theconviction grows that law is not justice4
and challenges the belief that justice is best secured when administered according to
law. The poor come to think of American justice as containing only laws that punish
and never laws that help.5 They are against the law because they consider the law
against them.6 A persuasion spreads that there is one law for the rich and another
for the poor.7

How this comes about can be simply told. One afternoon, Arthur v. Briesen,
President of the New York Legal Aid Society, took Theodore Roosevelt, then Po-
lice Commissioner of New York, to the Society's office to see what went on. They sat
at the interviewing desk. A glazier came in and related that he had set twenty-two
panes of glass in a barn and that the owner of the barn had refused to pay him
$6.60, the agreed price.8 He had been out of work and needed this money to buy
bread and milk for his family's supper. On his way home from the West Side, where
he had worked, to the East Side, where he lived, he crossed Fifth Avenue at Forty-
fourth Street and passed the luxurious restaurants on either corner. His own chil-
dren went to bed supperless. The next morning he sought out a lawyer, who told him
that to bring suit the costs and the fee would be ten dollars. This he could not pay.
From there he went to the Municipal Court, originally known as "The Poor Man's
Court," where he saw a judge, who was obliged to explain that he had neither the
time, nor the money, nor the right to undertake the necessary proceedings; that as
the man had no money, he could not prosecute the case; and that, inasmuch as the
expenses would exceed the amount in dispute, he had better drop it. As the man told

1 For a graphic description of the extent of the loan business see an article in the New York Times for March 25,
1917, Magazine Section, page 4, quoting from Arthur H. Ham, Director of Division of Remedial Loans, of the Russell
Sage Foundation ; also Business of Licensed Petty Loan Brokers in Baltimore, a study made in 1916 by the Legal
Aid Bureau of the Federated Charities of Baltimore.

2 Cf. United States Bureau of Labor Bulletin No. 98 (1912), page 289.

3 Theodore Roosevelt in the Metropolitan Magazine for May, 1917, page 66; Municipal Court of Philadelphia, Re-
port for 1915, pages viii, 37.

4 Root: Addresses on Government and Citizenship, page 480.

6 St. Louis Department of Public Welfare, Legal Aid Bureau, Report to the Mayor (April 10, 1916), page 7. Cf. Pound:
Administration of Justice in the Modern City, 26 Harvard L. Rev. (1913) 315.

6 Catchings: Work of the Neiv York Legal Aid Society, 15 Green Bag (1903), 313, 318.

7 Wells : The Man in Court (1917), page 30.

8 This is the case referred to by Mr. Roosevelt in his speech at the Twenty-fifth Anniversary Dinner of the New York
Legal Aid Society. Report of Speeches (1901), page 12.

DENIAL OF JUSTICE 11

his story, sitting in the office of the legal aid society, he was an incipient anarchist.

The effect on the immigrant is peculiarly unfortunate. He comes to this country,
often from lands of injustice and oppression, with high hopes, expecting to receive
fair play and square dealing. It is essential that he be assimilated and taught respect
for our institutions. Because of the strangeness of all his surroundings, his ignorance
of our language and our customs, often because of his simple faith in the America
of which he has heard, he becomes an easy prey. When he finds himself wronged or
betrayed, keen disappointment is added to the sense of injustice. Through bitter dis-
illusionment he becomes easily subject to the influences of sedition and disorder.1

The essentially conservative bench and bar will vehemently deny any suggestion
that there is no law for the poor, but, as the legal aid societies know,2 such is the
belief to-day of a multitude of humble, entirely honest people, and in the light of
their experience it appears as the simple truth. Consider, for example, this actual
case.3 A woman borrowed ten dollars in 1914, and for two years paid interest at 180
per cent. In 1916 a law was enacted fixing 36 per cent as the maximum rate.4 The
lender, by a device contrary to the statute, compelled her to continue paying 156 per
cent interest. The law also provided that if excess interest were charged, the loan
would be declared void by a suit in equity.5 The law was on the books. The court
house was open, the equity court in session with its judge on the bench and its offi-
cers in attendance. All that was of no avail to her, for the law could not bring its
redress until five dollars was paid for service of process and entry fee, and ten dollars
to an attorney to draw, file, and present the necessary bill of complaint. Fifteen dol-
lars she did not have and, because of her condition, could not earn. For her there
was no law.

Repeated warnings have come from sources entitled to respect that such a condition
of affairs is capable of producing incalculable harm.

"When litigation is too costly, the result for many persons is a denial of justice.
Such denial or partial denial of justice engenders social and commercial friction.
The sense of helplessness thus caused incites citizens to take the law into their own
hands. It causes crimes of violence. It saps patriotism and destroys civic pride.
It arouses class jealousies and breeds contempt for law and government."6

"The problem is fundamental. It strikes at the very root of our economic, social

1 See The Immigrants in America Review, vol. i, No. 4 (January, 1916), pages 31, 32 ; Second Report, California Com-
mission of Immigration (1916), 101, 103; Prospectus of New Jersey Legal Aid Society: A Legal Clinic (1906), 2; 17
Ann. Am. Ac. Pol. & Soc. Science (1901), 165; Report of Massachusetts Commission on Immigration for 1914, House
Document No. 2300 of 1914, page 111.

2 1 Buffalo L. A. R. 3; 5 Buffalo L. A. R. 6; 6 Cleveland L. A. R. 7; Cleveland L. A. S. : Justice for the Poor, page 1 ;
Nashville Commercial Club: The Legal Aid Society (1915); 1 Pittsburgh L. A. R. 3: 8 Philadelphia L. A. R. 15; 16
Jewish Charities of Chicago R. (Bureau of Personal Service) 70, 72, 73; 26N.Y. L. A.R. 5; Wood: Office of Public De-
fender (Los Angeles), page 3 ; 2 L. A. Rev. No. 2, p. 1 ; 8 L. A. Rev. No. 3, p. 2 ; Report of Proceedings, Third Conven-
tion National Alliance L. A. S., page 22; Ibid., Fourth, page 123.

3 Mary v. Star Finance Co., reported in full in 16 Boston L. A. R. 12-14.

4 Mass. Acts of 1916, chap. 224.

4 Mass. Acts of 1911, chap. 727, §§ 10, 13.

6 Chief Justice Olson in the Eighth and Ninth Annual Report of the Chicago Municipal Court (1915), page 128.

12 DENIAL OF JUSTICE TO THE POOR

and political structure. The man or woman who has honestly toiled and cannot
obtain the wages earned, loses faith in humanity and the efficacy of our laws and
courts; is often turned out a beggar, vagrant, or criminal, or seeks redress by
forcible means.,n

"If ever a time shall come when in this city only the rich man can enjoy law
as a doubtful luxury, when the poor who need it most cannot have it, when
only a golden key will unlock the door to the court room, the seeds of revolu-
tion will be sown, the firebrand of revolution will be lighted and put into the
hands of men, and they will almost be justified in the revolution which will
follow."2

In that direction we have imperceptibly, unconsciously, and unintentionally drifted.
The end of such a course is disclosed by history.3 Differences in the ability of classes
to use the machinery of the law, if permitted to remain, lead inevitably to dispar-
ity between the rights of classes in the law itself. And when the law recognizes and
enforces a distinction between classes, revolution ensues or democracy is at an end.

1 Sixteenth Biennial Report of the California Bureau of Labor Statistics (1914), page 15. Cf. Harley : Ultimate Types
of Inferior Courts and Judges, 22 Case and Comment (1915), 6.

2 From a speech by Lyman Abbott at the Twenty-fifth Anniversary Dinner of the New York Legal Aid Society.
Report of Speeches (1901), page 32.

3 By the third century a.d. class distinction had been set up by the Roman law. For an excellent statement, see
Davis: Tlie Influence of Wealth in Imperial Rome (1910), page 323.

Chapter III
THE DEFECTS IN THE ADMINISTRATION OF JUSTICE

The profession and the courts must take up vigorously and fear-
lessly the problem of to-day — how to administer the law to meet
the demands of the world that is. Roscoe Pound in Justice Ac-
cording to Law.1

§ 1

THE end of all our legal institutions is to secure justice. What is the just de-
cision in any controversy we determine, not by the arbitrary will or opinion
of any individual, but in accordance with definite rules of law. This is the method
. of justice according to law, and because it so far surpasses all other

. . " attempts at human justice it stands as a basic principle from which we
u cannot safely depart.

Our system of justice according to law has clear defects which exist first, because
law is not omnipotent but has limits beyond which its action is ineffective,2 and sec-
ond, because the system, like all finite projects, has its own particular weak points.3
From the ensuing discussion, defects traceable to these limitations and disadvantages
must be eliminated, for so long as we desire to retain the manifold benefits of jus-
tice according to law, it is profitless to quarrel about its concomitant and inherent
shortcomings.

§ 2
Freedom and equality of justice for the poor depend first on an impartial substan-
tive law and second on an even-handed administration of that law. The substantive
law is primary, for through it are created, stated, and defined all the
rights, obligations, and relationships between individuals, between in-
dividuals and the State, and through it are secured the social interests
in the health, safety, security, and general well-being of the individual and the com-
munity. It is an absolute condition precedent, for if it acknowledged differences in
rights between rich and poor, a perfected machinery of enforcement would serve only
to accentuate the distinctions and make them the more intolerable.

The body of the substantive law, as a whole, is remarkably free from any taint
of partiality. It is democratic to the core. Its rights are conferred and its liabilities
imposed without respect of persons. While, in this age of transition, it is confronted
with tremendous problems as yet unsolved, while it is slow to employ the more lib-
eral premises demanded by a new era,4 it deserves to be recognized as a remarkably
satisfactory human achievement. This is the opinion of our greatest legal scholars and

1 13 Columbia L. Rev. 696; 14 Columbia L. Rev. 1, 103 (1913-14). In the reprint in separate form see page 39.

2 Pound: Limits of Effective Legal Action, 3 Am. Bar Ass'n Journal, No. 1 (January, 1917), 65, particularly pages 66-70.

3 Pound : Justice According to Law, particularly pages 17, 18.

4 Cf. Pound: Ibid., page 60.

14 DENIAL OF JUSTICE TO THE POOR

of the most searching critics of our judicial institutions ; of such men as Roscoe Found,
John H. Wigmore, and the group who comprise the membership of the American
Judicature Society.1 A careful examination of the fairness of the substantive law from
the point of view of the poor has recently been made by Judge Parry of the English
County Courts,2 from which it is instantly apparent that the legal disabilities of the
poor in nearly every instance result from defects in the machinery of the law and are
not created by any discriminations of the substantive law against them.

Three branches of substantive law, it is true, have been much criticized. With re-
gard to public service law it has been popular to claim that the railroads, traction
companies, gas and electric light corporations were imposing on the public without
let or hindrance from the law. The better opinion is that the provisions of substan-
tive law were entirely fair and adequate, but that the courts, without administrative
machinery, were unable to cope with the problems of enforcement and supervision.3

Again, much of our landlord and tenant law is still feudal in its conceptions.
The rule that most of our city dwellers, because they occupy without written leases,
are only tenants " at will" and so liable to immediate dispossession does not accord
with modern conditions and often causes extreme hardship. Legislative attempts,
as in Massachusetts,4 to invest such tenants with a measure of security by requiring
notice to quit two weeks in advance have been frustrated by the courts' adherence
to the common law rule that the landlord may give a written lease for a year to a
third person, who then has a higher legal estate with right of possession after forty-
eight hours1 notice.5 In practice this means that fictitious leases are delivered to
ejectment companies,6 which exercise their superior title by removing the tenant's
household furniture to a warehouse to be interned till all charges are paid. This
anachronism could easily be remedied, however, by giving to proper courts discre-
tionary power to control the time which tenants, for cause shown, may continue in
possession after the landlord's notice to vacate.7

Finally, the redress afforded injured employees by the law has called forth the
bitterest attacks, and here the impartiality of the substantive law has most justly
been challenged. The workman who sought to recover for injuries sustained at work,
due to the negligence of his employer, was placed at an enormous disadvantage by
the rules defining the master's liability. The fellow servant rule and the doctrine of
assumption of risk, growing out of two cases which are now severely condemned8 and

1 See also. Pound: Administration of Justice in the Modern City, 26 Harvard L. Rev. (1913) 302 ; 73 Ann. Am. Ac.

Pol. & Soc. Science (September, 1917), pages 133, 134, 136 ; Report of Proceedings of Missouri Bar Association in

1914, page 146. Cf. Bentwick : Legal Aid for the Poor, 105 Contemporary Review (1914), 669.

* Edward Abbott Parry : Tlie Law and the Poor (1914). A limited examination is made by Frances M. Burdick in an

article entitled, " Is Law the Expression of Class Selfishness ? " 25 Harvard L. Rev. (1912) 349. Professor Burdick's

conclusion is in favor of the fairness of the substantive law.

3 American Judicature Society, Bulletin VI, page 7. * Mass. Revised Laws of 1902. chap. 129, § 12.

6 Pratt v. Farrar, 92 Mass. (1865) 519 ; for a statement of the general doctrine see Swift v. Boyd, 202 Mass. (1909) 26.

6 See Lewis: Leasing out the Tenant at Will, 2 Mass. L. Quarterly, No. 6 (August, 1917), 640.

7 This is stated more fully in Chapter VIII, Small Claims Courts, § 7-4, page 59.

8 As to Farwell v. Boston & Worcester Ry. (the first American case) 4 Metcalf (1842), 49, see Abbott: Justice and

DEFECTS IN ADMINISTRATION 15

elaborated by a process which can only be called judicial legislation,1 came perilously
near to constituting an actual class distinction in the law. Happily this stigma no
longer attaches, because within the last seven years workmen's compensation statutes,
which supplant the outworn doctrines of liability with the principle of insurance,
have been enacted in nearly every jurisdiction.

On examination and on authority, the statement is warranted that the substan-
tive law, with minor exceptions, is eminently fair and impartial. In other words, the
existing denial of justice to the poor is not attributable to any injustice in the heart
of the law itself. The necessary foundation for freedom and equality of justice exists.
The immemorial struggle is half won.

§ 3

In sharp contrast, there are grave defects in the administration of the law. It is

the wide disparity between the ability of the richer and poorer classes to utilize the

_ „ . machinery of the law which is, at bottom, the cause of the present

Defects in . .

,,. . . unrest and dissatisfaction. Denial of justice to the poor is due to the
Administration 7.,. . , , ,... , , . , ,

conditions, imposed by our traditional system, upon which alone can

suits be brought and conducted. There is something tragic in the fact that a plan and

method of administering justice, honestly designed to make efficient and certain that

litigation on which at last all rights depend, should result in rearing insuperable

obstacles in the path of those who most need protection, so that litigation becomes

impossible, rights are lost, and wrongs go unredressed.

The present inequalities and defects in the administration of justice are not the
result of any deliberate intention. No dominating group or class has consciously set
out to foreclose the rights of the poor. The procedural laws have been passed by the
legislatures in good faith. The courts have interpreted and applied the adjective law
without bias or favor. Corruption has played no part.2

The fact is that no one clearly perceived the general trend of affairs. A Bureau
of Justice of the type advocated by Dean Pound before the Conference of Delegates
of State and Local Bar Associations,3 in 1917, could have detected and prevented the
breakdown before it became serious, but as yet our judicial administration lacks that
necessary adjunct. Complaints gradually became audible that whereas all other busi-
ness was pointed toward efficiency, reduction of costs, and a general speeding-up, judi-
cial machinery remained cumbersome, wasteful, time-consuming, and very expensive.

the Modern Laiv (1913), page 264. As to Priestly v. Fowler (the first English case), 3 Meeson & Welsby (1837), 1, see
Parry : The Law and the Poor, pages 76 et seq.

1 Judicial treatment of this particular class of cases incurred such strong public disapproval that such cases have
now been taken out of the courts and entrusted to administrative tribunals. Seepost, Chapter XII, Administrative
Tribunals, page 83.

2 There are, of course, specific instances of bribery and judicial corruption. Most conspicuous is the old justice of
the peace system, cf. post, page 42. On a broad view, however, corruption has played such a trivial part in breaking
down our administration that it can be dismissed.

3 This is mentioned in 24 Case and Comment (October, 1917), 423.

16 DENIAL OF JUSTICE TO THE POOR

These complaints sounded in terms of delay and annoyance, not prohibition. Even
to-day it is only dimly understood that this faulty organization and procedure,1 which
is exasperating in large suits between persons of means, in all small suits and in all
litigation to which the poor are party causes an absolute denial of justice.

The conditions, under which our customary system requires litigation to be con-
ducted, impair rights guaranteed by the substantive law because law is not self-en-
forcing; only through application in the courts does the law have life and force.2 The
most fundamental rights remain idle abstractions unless the courts are able to give
them efficacy through enforcement. The Mexican Constitution exceeds any of our
bills of rights in its solicitude for life, liberty, and property, and yet in no country
have these rights been more steadily violated with impunity.3 For this reason the me-
chanics of the law occupy a place of great importance. The vital problem of to-day
in the administration of justice is to repair the breakdowns and to overhaul parts of
the machinery so that it may work more smoothly and may be workable by all.

§ 4
The defects in the administration of the law fall into three distinct divisions. In the
language of Piers Plowman :

"To the poor the Courts are a maze,
If he plead there all his life,
Law is so lordly
And loath to end his case;
Without money paid in presents
Law listeneth to few."

These three difficulties are not yet overcome. They still weigh heavily on the poor.
, Delay plays its unfair part. Money must be paid in fees and costs

„ or else the courts are closed. The law is necessarily an intricate and

complicated science, which may not be understood or utilized with-
out the assistance of a trained counsellor and advocate who must be paid.4

These are the conditions of modern litigation. The following three chapters con-
sider their precise nature and their results.

1 "Our system of courts is archaic and our procedure behind the times." Pound: Causes of Popular Dissatisfaction
with the Administration of Justice, 29 Am. Bar Ass'n R. (1906) Part I, 395, 408. See also Report of the Committee on
Judicial Procedure of the Massachusetts Constitutional Convention (July 16, 1917), Convention Report No. 314.

2 " Applicatioest vita regulae," 2 Bulstrode, 79. "The law as a practical force always receives its final effect through
the pronouncement of the judge." Wigrnore: The Qualities of Current Judicial Decisions, 9 Illinois L. Rev. (1915) 529.

3 Ezra R. Thayer: Judicial Administration (1915), page 1.

4 All that can be done within the scope of this work is to examine these cardinal defects which have brought about
a denial of justice to the poor. Many other factors, such as the frailties in human nature, maladjustments in our
social order, ignorance, unfairnesses in our economic system, contribute to this deplorable result.

One further cause is so closely linked to the administration of justice that it must be stated, although it cannot
be discussed in detail. There are to-day many members of the Bar so ill-trained in law and so poorly equipped to
practise law that the cases entrusted to them are mishandled and ruined and the rights of their clients lost. Unques-
tionably too large a proportion of the existing denial of justice is traceable to this source.

Chapter IV
THE FIRST DEFECT— DELAY

While the law is enforced, justice waits. The possibilities of delay
and of forcing a compromise to avoid expense and annoyance in-
duce litigation by those who wish to escape the faithful perform-
ance of their contracts. The calendars are crowded with such cases.
In such a game the poor stand little chance against the rich, or the
honest against the unscrupulous. Elihu Root.1

§1

ALTHOUGH the days of Jarndyce v. Jarndyce are over, the course of American
to justice still amply provides the opportunity for delay " which gives to monied
might the means abundantly of wearying out the right.11 Delay is
J not entirely bad. In cases where it serves to cool hasty tempers and

' stay spiteful litigation it is desirable. But when it becomes so pro-

° " longed that the issue ceases to be that of the merits of the case and

becomes one as to the respective length of the parties1 pocketbooks, it is altogether
intolerable.

This evil of delay is established and the injustice which it causes is universally
recognized.2 It works to defeat justice in two ways: first, by making the time re-
quired to reduce a case to final judgment so long that persons, unable to wait, do
not start the case at all but give it up ; and second, by forcing unfair settlements and
compromises on persons so situated either before suit is brought or in discount of
a verdict after trial in exchange for a waiver of appeal. In a wage claim speed is the
essence of justice, for the suit is brought to obtain the means of livelihood. A judg-
ment years or even months later is little better than no judgment.3 In negotiations
between counsel for the settlement of personal injury cases it is customary to deduct
something from the amount agreed on as fair damages on the theory that less is
better now than more three years hence in the due course of the law. The evil tends
to aggravate itself by encouraging parties without meritorious defences to make a
sham contest so that they may avail themselves of delay and perhaps beat down the
claim against them.4 The natural delay of the system is thus increased by this arti-
ficial burden ; it is like throwing sand in unoiled gears.

■

1 Root: Addresses on Government and Citizenship (1916), page 493; and see Ending the Scandal of the Law's
Delay, Ibid., page 177.

2 Taft: The Administration of Justice— Its Speeding and Cheapening, 72 Central L. Journal (1911), 191, 193, 194;
(same article) 18 Yale L. Journal, 28; Pound: Administration of Justice in the Modern City, 26 Harvard L. Rev. 302,
312, 313 ; Chicago Bar Association Annual Report for 1912, page 12 ; Storey : Reform of Legal Procedure (1911), page 3 ;
Harley : A Unified State Court System (n.d.), page 10 ; Root : Addresses on Government and Citizenship, pages 125,
177, 179, 440, 493 ; Report of Special Section of the California Bar Association, Exhibit 3, printed in the San Francisco
Recorder for Julyl4, 1916, page6; The Mediator, vol. iv, No. 6 (June, 1912), p. 11; 6 Legal Aid Review, No. 4, p. 25;
7 L. A. R. No. 4, p. 25.

3 In recognition of this fact, special industrial courts have been created in European countries, United States
Bureau of Labor Bulletin No. 98 (January, 1912), p. 281.

* See Chicago Bar Association Annual Report for 1917, page 32.

18 DENIAL OF JUSTICE TO THE POOR

§2

Delays are mainly of two sorts: those encountered in getting a case, after its entry
in court, actually heard and determined, and those occasioned by the taking of ap-
peals on points of law to the highest courts. The following case illus-
„ trates the delays in securing a final judgment in Philadelphia before

the creation of the municipal court in 1913, and is typical of a con-
dition which has existed in every large city:1 A wage-earner had a claim for ten dol-
lars, which represented a week's work. On January 19, 1911, the Legal Aid Society
tried his case in the Magistrate's Court and secured judgment. On February 8, 1911,
the defendant appealed to the Court of Common Pleas, which gave him the right to
have the entire case tried all over again. On March 11, 1911, the plaintiffs claim was
filed in the Court of Common Pleas and the case marked for the trial list. Owing to
congested dockets the case did not actually appear on a trial list until February 7,
1912.

Here entered a rule of procedure which would be incredible if it did not exist.2 A
case marked for trial Monday must be tried Monday or Tuesday or else go off the list
entirely. That is, if any prior case or cases marked on Monday's calendar should occupy
the time of the court during Monday and Tuesday, then all other cases assigned on
that list are cancelled and the parties must begin at the bottom again, re-marking
the case for trial and awaiting the assignment. While this is going on in one session,
another session of the same court may have no cases and so be obliged to suspend,
for, under the legal procedure, it was forbidden to do the common-sense thing of
transferring cases from a congested to an empty session of court.

The wage-earner's case, assigned for February 7, 1912, was not reached on that day
or the next, and so went off the list. It was re-marked and assigned for April 3, 1912.
Not being reached on April 3 or 4, it again went off and did not reappear until Octo-
ber 10, 1912. Fortunately, it was reached and tried on October 11, 1912, and judg-
ment entered for the plaintiff. It took one year and nine months, and required eleven
days in court for both attorney and client, to collect the original ten dollars.3

In the criminal law, delays while awaiting trial are even more serious, for, where
the defendant is too poor to furnish bail, delay is equivalent to a sentence of impris-
onment for poverty.4

In appeals taken to the courts of last resort on points of law, a reasonable delay
is to be expected. The right of appeal cannot be cut off, and a certain deliberation

1 See Eighth and Ninth Annual Report, Municipal Court of Chicago (1915), page 11.

2 Compare the similar rule in the Suffolk County (Mass.) Probate Court referred to post, page 77.

3 Report of the Proceedings of Second Conference of Legal Aid Societies (1912), page 22 ; Address of Charles L.
Brown, President Judge of the Municipal Court of Philadelphia (December 8, 1914), page 9. Before the creation of
the Cleveland Municipal Court the Common Pleas Court was two years behind in its docket. Report of Proceed-
ings of Second Conference of Legal Aid Societies, page 70.

4 See Justice for the Poor, a report of the Committee on Criminal Courts of the ( New York) Charity Organization
Society.

DELAY 19

of the points raised is desirable. Such appeals are relatively few in number and are
not objectionable. But when the highest courts get years behind in their cases, as has
happened in California and New York, and parties appeal not to secure rights but
to secure delay, to get the benefit of the old adage that "time fights for the defend-
ant," with hopes that the opposing party will die, or run out of funds, or become
discouraged and give up, then delay becomes an outrage.

§3

The delays which mar the existing administration of justice originate in, and are
made possible by,1 our faulty court organization and our "thoroughly antiquated
civil and criminal procedure." 2 With unification of court organiza-
tion and simplification of procedure unconscionable delay will be
tion of Delay

° swept away.

The outlook for a speedy reformation is promising. Already great strides have been
taken.3 On this score the public conscience is aroused. The elimination of inter-
mediate appeals permitting two trials on the facts has accompanied the creation of
modern municipal courts and has done away with one of the most flagrant abuses.*
The municipal courts, despite their vast number of cases, are keeping abreast of their
dockets.5 The intelligent propaganda of the American Judicature Society is clearly
pointing to the methods whereby judicial administration can be lifted out of the
muddle into which it has fallen, and there is an increasing disposition on the part of
the courts, the bar, and the legislatures to make the needed changes. With the pass-
ing of delay one great cause of denial of justice to the poor will be at an end.

Tedious proceedings and long delays are not necessary. They are not inevitable or
inherent in the nature of our judicial institutions. They can be abolished whenever
we so will it.

1 Philadelphia Municipal Court Report for 1915, page vii ; American Judicature Society, Bulletin VI. page 8 ; Pre-
liminary Report for the National Economic League on Efficiency in the Administration of Justice, pages 20-26.

2 Redlich: The Common Law and the Case Method, Carnegie Foundation for the Advancement of Teaching,
Bulletin No. 8(1914), page 49.

3 73 Ann. Am. Ac. Pol. & Soc. Science (1917), 3, 211.

4 Report of the Boston Municipal Court for 1916, pages 5-7.

6 In February, 1917, the New York Municipal Court rendered judgment in a tort claim for an accident which
happened in February. It is not unusual for judgment in breach of contract cases to be entered the same month
in which the breach occurred.

Chapter V
THE SECOND DEFECT — COURT COSTS AND FEES

Believing that courts as governmental agencies are operated as a part of our so-
cial system for the benefit of all, we are unwilling to subscribe to the view that
the litigant should pay all expenses of maintaining the court. Inasmuch as
the law of the state requires that fees and costs be taxed and charged to the
litigants and has conferred no power upon this court to abolish them entirely,
we could not consider doing away with all fees however desirable that might
seem. Committee on Costs of the Cleveland Municipal Court.1

THE entire question of the costs and fees paid to courts and court officers is one
that has been neglected in discussions concerning the betterment of the admin-
istration of justice. While the total expense of litigation and the injustice which it
causes is a common topic, the precise part played by the system of imposts fixed and
levied by the State on persons who are compelled to resort to the courts for protec-
tion or redress has never received any general or extended consideration.2 The Amer-
ican Bar Association's "Special Committee to Suggest Remedies and Formulate Pro-
posed Laws to Prevent Delay and Unnecessary Cost in Litigation," which has been
in existence since 1907 and has submitted annual reports, has laid almost all of its
emphasis on procedure and has done but little with the subject of costs.3

This is perhaps natural, for the present system and tariff' of fees is so curious that,
with the exception of the taxing clerk and those attorneys who live by costs, few
lawyers understand its details or why many of the items exist. And yet, inasmuch
as these costs form no inconsiderable item and are a prolific source of denial of justice
to the poor, they require careful statement and examination.

§ i

Costs have existed so long that there is a general disposition to regard them as

fundamental, as immutably bound up with our legal institutions.

This is a mistake; costs are not established by our constitutions, they

" / are not the product of common law, thev exist solely and entirely as

Costs and Fees „ , , ,

creatures of statute.

The early English law had no system of costs. An unsuccessful plaintiff or defend-

1 From the second page of the Report of the Committee on Costs of the Cleveland Municipal Court, submitted
September 26, 1913. This report was adopted by unanimous vote of the judges, and its reduced schedule of costs
went into effect October 1, 1913.

2 The Cleveland Report is possibly an exception to this. While the judges on the Committee examined into the
subject thoroughly, the report itself is brief and local in application.

3 In three reports there is some consideration of fees. In 34 Am. Bar Ass'n R. (1909) 600 there is a short discussion;
in 36 A. B. A. R. (1910) 622 a bill to diminish costs on appeal is submitted ; in 38 A. B. A. R. (1913) 552, 572, it is pro-
posed to eliminate travel expenses in certain cases by permitting marshals to mail processes to deputies in outly-
ing districts. In the summary of the work of this Committee set out in 42 A. B. A. R. (1917) 336-339, costs are not
mentioned.

4 11 Cyclopedia of Law and Procedure, 24; cases cited.

COURT COSTS AND FEES 21

ant might be amerced pro clamor e f also, that is, the court might impose a fine for set-
ting up a false claim or defence, but it is doubtful if this was done to any extent.1
So far as costs played any part, they were included in the damages or, on occasion,
assessed in the arbitrary discretion of the judge.2 It is true that it was the royal
prerogative of the earlier kings to charge suitors for writs to the King's Court, but
it was an accepted maxim that the poor should have their writs for nothing.3 "Be-
fore the Statute of Gloucester (6 Edward I, cap. 1) no person was entitled to recover
any costs of suit either in plea, real, personal, or mixed."4

With this statute of Edward I the system of fixed costs begins. The motivating
causes which led to the establishment of court fees are not clear. They seem to have
been a survival of the idea of revenue, a carrying over of the conception of fines for a
false claim (for in theory only the wrongdoer bears costs), and a desire to impose a de-
terrent to litigation. At the same time, there was a clear idea that, while revenue and
a deterrent were desirable, costs ought never to operate as a prohibition, and by the
time of Henry VIII ample provision had been made to safeguard the rights of the poor.

The Statute of 11 Henry VII, cap. 12, permitting poor persons to sue without
payment of costs merits quotation, for the centuries which have intervened between
its enactment in 1495 and the establishment of the small claims court in Cleveland
in 1913 bear witness to no more comprehensive attempt to secure freedom of justice
to the poor. The tendency has, in fact, until recently been entirely in an opposite direc-
tion. It was provided —

" That every poor person or persons which have or hereafter shall have causes
of action against any person within this realm shall have by the discretion of
the Chancellor of this realm, for the time being, writs or writs original, and
subpoenas according to the nature of their causes, therefore nothing paying to
your Highness for the seals of the same, nor to any person for the writing of
the said writs to be hereafter sued; and that the said Chancellor shall assign
clerks to write the same writs ready to be sealed; and also learned counsel and
attornies for the same, without any reward taken therefor; and if the said writ
or writs be returned before the king in his bench, the justices shall assign to the
same poor person or persons, counsel learned, by their discretions, which shall
give their counsels, nothing taking for the same; and the justices shall likewise
appoint attorney for such poor person or persons and all other officers requisite
and necessary to be had for the speed of the said suits, which shall do their duties
without any reward for their counsels, help and business in the same; and the
same law shall be observed of all such suits to be made before the King's jus-
tices of his Common place, and barons of his Exchequer, and all other justices in
the courts of record where any such suit shall be.11

This was the origin of the in forma pauperis proceeding.5 It is an important land-
mark which has been too much forgotten. Because it gives effect to the spirit of Magna

1 11 Cyclopedia of Law and Procedure, 24; 17 Fed. 2; 4 Blackstone, 379.

2 John Hullock: Law of Costs (London, 1796), 2-4. 3 Pollock and Maitland: 1 History of English Law, 174.
4 Hullock : op. cit., 2-4; Society for Comparative Legislation, vol. i (1st Series), 241.

6 16 Encyclopedia of Pleading and Practice, 675 ; Roy v. Louisville & Nashville Ry. Co., 34 Fed. 276.

22 DENIAL OF JUSTICE TO THE POOR

Carta it has been regarded as establishing a constitutional principle.1 This enact-
ment was carried to its logical completion by 23 Henry VIII, cap. 15, which freed
a pauper plaintiff from imposition of costs if he failed to obtain a verdict or was non-
suited. The statute left the defeated poor suitor to be subjected to such other punish-
ment as the judges deemed reasonable. The old books state that if a pauper abused the
proceeding or was nonsuited, he might be taken to the market-place and whipped;2 but
the general spirit of the law was such that when a motion came before Lord Chief
Justice Holt to order a nonsuited pauper to be whipped, he denied the motion, observ-
ing that there was no officer for the purpose and that he had never known it done.3

These statutes remained in force in England until 1883, when by the Statute Law
and Civil Procedure Act (46 & 47 Victoria, c. 49) they were repealed and, with them,
these rights and privileges swept away.4 The English law remained inhospitable to
poor suitors until the great changes inaugurated in 1913.5

The American states carried over into their judicial systems the plan of costs and
fees, but many neglected to include the necessary corollary of the proceeding in forma
pauperis. In Pennsylvania it has been held that the statute of 11 Henry VII, c. 12, is
part of the common law of the state,6 but in practice the statute is ignored. To-day,
the permission to sue without costs is granted by statute in about half the states.
Even in such states the right is a good deal hedged about, by limiting it to specified
types of cases, as wage claims, by confining it to proceedings in certain courts,7 and by
holding it inapplicable to cases on appeal.8 In several states it has fallen into disuse.

§2
It is extremely difficult to present with any conciseness the existing costs and fees
in the United States. The items are innumerable, they vary from state to state, and
_ within a state they differ in different courts, in different proceedings,

' and a line of cleavage runs through law and equity. In the Boston

Municipal Court service of process must be made by a sheriff or con-
stable whose fees are paid by the plaintiff; in the Cincinnati court the constable must
serve processes, but he is paid a salary by the city; in Cleveland the mail is used; in
New York any disinterested person may serve the summons. In some states fees are

1 Frederick J. Stimson in Federal and State Constitutions (1908) lists this statute in his historical digest of con-
stitutional principles, Book II, chap, ii, p. 100.

2 Bacon's Abridgment, vol. ii, tit. Costs, § 4, p. 51. 3 Salk. 506; Bacon, op. cit.; Hullock : Laiu of Costs, page 213.
* Bisschop: Legal Aid for the Poor, 48 Law Journal (1913), 242; Bentwick: Legal Aid for the Poor, 47 Law Journal
(1912), 48.

5 These are discussed post in Chapter XIV, Assigned Counsel, page 102; and in Chapter XXV, A More Equal Admin-
istration of Justice, page 248.

6 Cowan v. City of Chester, 2 Delaware County R. 234; 7 Weekly Notes of Cases, 31 ; Roberts' Digest (second edition,
Philadelphia, 1847), 116; 1 Johnson on Practice in Pennsylvania, 71.

7 In Maryland the in forma pauperis act does not apply to the People's Court in Baltimore; in New Jersey it does
not apply to the District Courts.

8 16 Encyc. Pleading and Practice, 693. It seems to apply to appeals only in the Federal Courts and in Georgia.
Fite v. Black, 85 Ga. 413; in North Carolina, Mason v. Osgood, 71 N. Car. 212; and in Tennessee, Lynn v. Mfg. Co.
8 Lea, 29.

COURT COSTS AND FEES 23

charged for marking cases on the calendar, for entering judgment, for issuance of
execution; in others such costs are unknown. If a cook, suing for wages earned on
land in Boston, takes an appeal from the Municipal Court to the Supreme Judicial
Court, the entry fee is three dollars; but if a cook, suing for wages earned on a vessel
which comes into the port of Boston, takes an appeal from the District Court to the
Circuit Court of Appeals, the entry fee is thirty-five dollars. In Oregon, to the regu-
lar filing fee in the county court there has been added a one dollar fee for the benefit
of the Multnomah County law library.1 In many states jury fees varying greatly in
amounts are charged — California $24 per day, Connecticut one payment of $6, Min-
nesota $3, Pennsylvania $4, Virginia $1.50, Oregon $6 (jury of six); in Ohio a law
prescribing a jury fee of $5 was declared unconstitutional.2 In California, until changed
in 1915 at the instance of the Public Defender,3 the cost of entering and marking a
case on appeal was borne by the plaintiff, although the judgment in the lower court
was in his favor and he had not taken the appeal. In some jurisdictions a defendant
must pay a fee before he can appear and file an answer. In Illinois the respondent in
a divorce case has been obliged to pay three dollars for the privilege of contesting,
while in Missouri the court was doing its utmost to prevent divorces by default, and
thereby to safeguard the interest of the state.4

It is impossible to find any principle by which costs are determined and regulated.
They are too low to deter the rich, but high enough to prohibit the poor. They bear
little relation to the actual disbursements of the parties.5 " Term fees" which are taxed
in favor of the successful party represent no cash expenditure by anybody. The bill
of costs includes one dollar for a writ that can be purchased at any law stationer's for
five cents. It allows to the prevailing party two or three dollars as an attorney's fee,
while the actual charge made by the attorney to his client is probably ten times that
amount.

The fees paid by the litigants bear no closer relation to the state's expense in main-
taining the judicial organization. The average daily cost to the state for a trial with
jury is variously estimated to be from fifty to one hundred and fifty dollars.6 The total
fees paid by litigants for such a trial range from three to thirty-two dollars.

If the existing system were brought forward de novo, it would be ridiculed as
absurd. Considering it as a part of our traditional method of working out justice, it
is fairer to call it an anachronism. The Cleveland report7 accurately summarizes the
situation :

1 Lord's Oregon Laws, § 1125.

2 Second Cleveland Municipal Court R. (1913) page 16; L. A. Griffin Co. v. R. & F. Co., Common Pleas Court Journal,
189, page 1079 ; Aff. Court of Appeals, vol. i, p. 91 (1913).

3 California Code of Civil Procedure, § 981.

4 For a statement of the divorce proctor and his work in Missouri, see post. Chapter XIV, Assigned Counsel, page
102.

5 Storey: Reform, of Legal Procedure, page 34.

6 The expense of litigation to the state is presented more fully in Chapter XIX, Types of Legal Aid Organizations,
page 183.

7 Report of Committee on Costs of the Cleveland Municipal Court, filed September 26, 1913.

24 DENIAL OF JUSTICE TO THE POOR

"The old standards worked serious inequalities and frequently discriminated
against the smaller cases. Charges are made in smaller cases for services which
are not charged in larger. For example, in the justice code fees are charged for
services of the judge in trying the case and in entering judgment, while for sim-
ilar services rendered by judges of common pleas no charge is made. There are
also instances of greater charges for purely clerical or ministerial work, for ex-
ample, taking affidavits, bonds, undertakings, issuing process, orders of attach-
ment, poundage, etc. The committee was of opinion that like services should be
charged for equally.

" In making the revision we have endeavored to adapt the charges to modern
conditions. The present schedule is a relic of stage coach days and in many re-
spects has come down to us unchanged from the laws of the Northwest Territory
and from the first enactments of Ohio after achieving statehood, passed in Feb-
ruary, 1805. These schedules of fees were enacted under different conditions, when
communication was difficult, facilities of transportation were scarce and labor-
saving devices unknown.

"An inspection of the old schedule under modern conditions shows also dispro-
portionate charges and absurdities; for instance, the charge of twenty-five cents
for copies which are now made by using carbon paper and not by long hand
as was necessary before the day of the typewriter. So is the method of charging
mileage or travelling expenses inexcusable. For these reasons your committee
deemed revision of many fees necessary."

By eliminating all fictitious costs and leaving the worry over that puzzle to the
taxing clerk, and so narrowing the inquiry to the actual cash expenses for costs which
must be met by persons desiring to use the courts, it is possible to make a more con-
crete presentation. Because of radical differences, it is convenient to separate costs into
three groups: first, costs in the trial court paid to the court or its officers; second,
costs on appeal; third, costs for witnesses, transcripts of evidence, and briefs. As to
the first, there being several trial courts, each with its own costs, it is advisable to
study only the inferior courts, where the cases of the poor are generally heard, except
where the inferior court's limit of jurisdiction is so low that cases are necessarily
brought in the superior courts.

§3

The actual expenses in a trial court, exclusive of witness fees, may be reduced to the
writ or summons, the service of process, entry fee, calendar fee, trial fee, entry of judg-
^-r , • ,7 ment, and issuance of execution. It is proper to eliminate the jury fee,
„ for so long as a trial by a judge is possible, no denial of justice can

fairly be alleged. For a similar reason fees for attachment or garnish-
ment are excluded. Each court uses a different combination of these items. In some
one or two payments cover everything, in others the charges are made separately.
Since our inquiry is only to determine the actual expense, all the various items may
be rolled into one total. The figures given below are not absolute; they may be varied

COURT COSTS AND FEES 25

by the distance traveled for service, by the number of motions or interlocutory pro-
ceedings, and by other factors; but they fairly represent the minimum cost in an
ordinary case.

City

Court

Minimum Cost

Baltimore

People's Court

$2.40

Boston

Municipal Court

2.65

Chicago

Cincinnati

Cleveland

Municipal Court
Municipal Court
Small Claims Court

3.50

2.00

.52

Dayton
Hartford

Municipal Court
City Court

2.00
5.76

Superior Court

15.51

Jersey City
Los Angeles

District Court
Justice's Court

4.00
5.00

Superior Court

8.00

Minneapolis
New York

Municipal Court
Municipal Court

3.50
2.00

Philadelphia

Pittsburgh

Richmond

Municipal Court
County Court
Justice's Court

11.00
5.50
1.30

Law Court

3.50

Portland

Small Claims Court

1.75

Saint Paul

Justice's Court

3.00

These figures would be much higher were it not for the advent of municipal courts,
which have done much to reduce costs. In Cincinnati, Columbus, and Dayton, for
example, it is provided by the court act that costs, exclusive of witness fees, shall
not exceed two dollars. While these actual expenses may seem small in substantial
causes, they loom large in the troubles of the poor. In claims under fifty dollars, an
immediate expenditure of four or five dollars may well be disproportionate; in any
event it is often more than the needy litigant can afford, particularly where additional
outlays for witnesses and attachments are necessary.

Before considering how the general situation as to costs in the trial court may be
improved, it is necessary to make passing mention of two plans by which costs are
charged. In some jurisdictions, as Ohio and Maryland, costs are not prepaid; they
are charged only at the end of the proceedings, with the result that often they are un-
collectable. Such a plan assists the unscrupulous more than the poor and unnecessarily
deprives the State of revenue in cases which could bear costs.1 In other places, as in
Virginia and Texas, costs are not prepaid but a bond to cover them is filed. This
might occasionally assist a destitute suitor whose character enabled him to procure
sureties.

The two immediate and practicable remedies are to scale down all costs to a mini-

1 In its survey of Columbus, the New York Bureau of Municipal Research found in the Municipal Court in one year
400 cases where the fees had never been paid. In its report, dated January 31, 1917, and filed with the City Council,
it recommended "that all fees be payable in advance." Also reported in Ohio State Journal, February 7, 1917.

26 DENIAL OF JUSTICE TO THE POOR

mum and to vest in the judges discretionary power to permit in forma pauperis pro-
ceedings in all cases in all courts. A general reduction of costs is desirable,1 and it can
be accomplished without materially impairing the state's revenue. The expense of
service of process, which in many inferior courts is the largest item,2 can be eliminated
by permitting citizen's service as in New York and Minnesota, or by the simple ex-
pedient of using the mails.3 All proceedings in the Cleveland Municipal Court may
now be served by mail.4 The California Industrial Accident Board sends its notices
by mail.5 Probate citations in Massachusetts may, on the court's order, be served by
mail.6 This has proved successful; it is the opinion of Cleveland judges that fewer
motions to remove defaults are brought in cases of service by mail than by consta-
bles; and it effectuates a reduction of this item from $1.75 to $.12 or $.02, without
depriving the state of any revenue.

Where reduction of court costs is accompanied by efficient court organization no
loss to the state results. In 1914 the tariff of costs in the Cleveland Municipal Court
was radically lower than in 1913, and yet the cost of the court to the tax-payers
was less in 1914 than in 1913.7 In the Municipal Court of the District of Columbia,
where the cost of suit is $1.85, the court's accounts for the year ending June 30, 1913,
showed a profit over and above all expenses including rent of more than $12,000.8

If costs are lowered in this manner, the number of persons who cannot secure a
trial will be reduced to a minimum. Provision should be made for such persons by
a comprehensive in forma pauperis statute, similar to that in the federal courts under
which it is possible for a poor person to carry a case through the Supreme Court of
the United States without payment of costs to the court. Proceedings in forma pau-
peris, where properly guarded, as in Scotland and in France under "l'assistance ju-
diciaire,"9 cause but slight loss to the state, for such suits are permitted only when
a good cause of action is disclosed, so that in the majority of cases a judgment fol-
lows and the costs paid by the defendant may be used to reimburse the state.

Such steps would not swamp the courts with specious litigation. In Cleveland no
abuse has resulted from the radical reduction of costs. While from the nature of the
proposition statistics are impossible, it is the general opinion that fewer, and certainly
no more, fraudulent claims for personal injuries are presented to Industrial Accident
Boards where there are no costs than were formerly brought to the courts where fees
obtained.

1 Taft: Administration of Justice, 72 Central L. Journ. 191, 196.

2 In the Boston Municipal Court, 60 per cent.

3 See 73 Ann. Am. Ac. Pol. & Soc. Science (1917), 164; 2 Philadelphia Municipal Court R. 19 ; 2 Cleveland Municipal
Court R. 9, 11, 20 ; 3 Ibid., 84.

4 4 Cleveland Municipal Court R. 11, 20, 71, 73 insert.
B 1 Southwestern L. Rev. (January, 1917), 81.

6 Massachusetts Acts of 1915, c. 24.

7 3 Cleveland Municipal Court R. 8, 57.

8 Baer: Justice for the Small Man, 90 Century Magazine (1916), 144, 147.

9 These systems are discussed in detail in Chapter XXV, A More Equal Administration of Justice, page 247.

COURT COSTS AND FEES 27

§4

Costs paid to the court on appeal consist of the entry fee and the expense of making
up and printing the record of the case on appeal, or on exceptions, or on writ of
Costs on error# Such costs in the aggregate are seldom less than twenty-five and
Jvveal °ften run over a hundred dollars. While appellate costs affect the poor only
in a proportionately small number of cases, it is highly desirable in the in-
terests of justice,1 and for the sake of a well-rounded development of our common
law, that it be possible for poor persons to obtain decisions on questions of law which
arise in their cases. The condition which has been too common under the compensa-
tion acts, of having cases appealed, briefed, and argued only by the insurer, the em-
ployee being unable to meet the expense, is not healthy. One-sided argument inev-
itably tends to produce a one-sided construction of the law.2

These expenses represent a waste and are unnecessary. With proper organization
of courts they will automatically disappear. In a unified court, as in England, there
is no entry fee, for the appeal is effected merely by transfer from the trial to the
appellate division. There is no necessity for printing of records, transcripts, bills of
exceptions, certificates of evidence, and the like, for, since the appellate and trial tri-
bunals are simply branches or divisions of one court, each judicially knows the rec-
ords of the other, and uses all the original files, papers, and documents.3

§5
Expenses incurred in litigation for witness fees, briefs, and transcripts of evidence,
which counsel invariably needs for his own preparation, raise an entirely different
problem. Their amount varies indefinitely according to the number of
n . /» \ witnesses summoned, the complexity of the points to be argued, and the
rp • length of the trial. The peculiar difficulty which they present is that

" they are not payments which the state can waive. Persons who are com-
pelled to leave their work to testify in court, printers, and stenographers are unques-
tionably entitled to be paid. Such expenses cannot be scaled down, nor can they be
eliminated by any reorganization of courts or procedure.

There is no solution except for the state to provide a fund to be disbursed by, and
under the supervision of, its judicial department or legal aid bureau.4 Such a propo-

1 Root : Addresses on Citizenship and Government, page 133. See a pamphlet by Hiram T. Gilbert (the author of the
Chicago Municipal Court Act), dated May 25, 1910, and entitled "A Synopsis of a Bill for an Act in Relation to Courts
to be Introduced in the 47th General Assembly," at page 14.

2 See an article entitled "Preventive Law" in 15 N. Y. Legal Aid Rev., No. 2 (April, 1917), p. 3.

3 Pound: Organization of Courts, American Judicature Society, Bulletin VI, page 25; Pound: Causes of Popular
Dissatisfaction with the Administration of Justice, 29 Am. Bar Ass'n R. 395, 410. The same thing holds true in the
Boston Municipal Court as between the trial and appellate divisions.

4 Cf. the suggestions made by Hiram T. Gilbert in his book, Practice in the Municipal Court of Chicago (1908). at
page 546, and in his pamphlet, A Synopsis of a Bill for an Act in Relation to Courts to be Introduced in the Ulth
General Assembly, at page 114, § 2036.

28 DENIAL OF JUSTICE TO THE POOR

sition is not wholly without precedent. It is a general rule that the state will reim-
burse for expenses incurred in disbarment proceedings.1 In the municipal legal aid
bureaus provision is made for the expenses incurred in the litigation of the bureau's
clients. The Duluth Legal Aid Bureau has expended out of the public treasury the
following amounts: in 1914, $150; in 1915, $126.01; in 1916, $108.18. In Los An-
geles the Public Defender is authorized2 to apply to the county treasury for litiga-
tion expenses, although he has never done so, fearing that such a course might be
unconstitutional.3 The 1913 Rules of the English High Court of Judicature, in mak-
ing provision for poor litigants, call for the defraying of their expenses by a Treasury
grant.4 Mr. Taft, in speaking before the Virginia Bar Association in 1908, after argu-
ing for "a mandatory reduction of court costs and fees," said:5

"I believe that it is sufficiently in the interest of the public at large to promote
equality between litigants, to take upon the government much more than has
already been done, the burden of private litigation."

§6
Certain it is that until thoroughgoing changes are made, denial of justice to the poor
because of inability to pay the required court costs and fees will continue. That the
. _ present system of costs works daily to close the doors of the courts

, , to the poor is proved by ample evidence.6 In Boston the Legal Aid

° Society has kept precise figures since April 1, 1916. During the sev-

enteen months ending August 81, 1917, thei*e were 551 cases which
could not be settled out of court, which were meritorious and required court action ;
386 were taken to court and won, 36 were taken and lost, and 129 could not be brought
before the courts because of the client's inability to pay the costs. In other words, the
fees required by the state caused a total failure of justice to twenty-three per cent
of the persons who needed to invoke the aid of the machinery of justice.

How the existing system of costs literally forbids resort to the courts by the poor
is illustrated by the laws requiring security for costs. A plaintiff must not only pay the
costs for summons, service, entry, trial, judgment, and the like, but in addition he

1 See Connecticut Practice Book of 1908, page 206. This includes the expense for attorney's services, Burrage v.
County of Bristol, 210 Mass. (1911) 299.

2 Section 23 of the Charter of Los Angeles County provides, "The costs in all actions in which the Public Defender
shall appear under this section, whether for plaintiff or for defendants, shall be paid out of the County Treasury."

3 This question arises from the decisions holding unconstitutional statutes giving to laborers, who obtain judg-
ments under mechanic's liens, a special attorney's fee to be paid by the defendant on the ground of denial of equal
protection of the laws. See Atkinson v. Woodman, 74 Pac. 640; note in 17 Harvard L. Rev. 355, citing cases.

4 See 48 Law Journal, 243, 468.

6 Taft: Administration of Justice, 72 Central L. Journal, 191, 196; 4 National Municipal Review, 454.

6 San Francisco Legal Aid R. for 1916, 9 ; 8 Pittsburgh L. A. R. 14, 17 ; Office of the Public Defender (Los Angeles), pages
14, 24 ; Place of the Public Defender in the Administration of Justice, pages 23, 24 ; 5 Boston L. A. R. 6; Bulletin of
Legal Aid Society of Chicago, 1916-17, No. 2, pp. vii, viii; 31 Chicago L. A. R. 29; S3 Am. Bar Ass'n R. 81 ; 4 United
Charities of Rochester R. 12 ; 6 Cincinnati L. A. R. 3 ; 2 Philadelphia Municipal Court R. 34, 35: 1 Milwaukee L. A. R.
8. The legal aid societies in Cincinnati, Newark, New Orleans. Omaha, and Philadelphia state that proper litigation
is often rendered impossible because of the inability of clients to pay the required court costs.

COURT COSTS AND FEES 29

must, on motion, furnish a bond to guarantee that the defendant, if successful, shall
not be out of pocket. In the Connecticut law, for example, the bond is in the sum of
fifteen dollars in the City Court of Hartford and seventy-five dollars in the Superior
Court.1 The defendant may bring such a motion on the ground that the plaintiff is
a poor person. The net result is that a poor person who is unable to give or secure
such a bond may be thrown out of court altogether. In Campbell v. Chicago, etc.,
R. Co.2 a defendant moved that the plaintiff, a poor person, be required to furnish a
bond. The judge continued the case for a week to give the plaintiff time to file such
a bond and, on his inability to do so, dismissed his case. On appeal the court said:

"We have no statute which permits a person to sue in forma pauperis. It seems
almost like a hardship that a poor person should not be able to litigate. But
this is a matter for the legislature to regulate and not the justice."

Laws requiring security for costs, despite their patent harshness to the poor, have
uniformly been upheld.3 In striking contrast are the early English decisions which,
perceiving the injustice of a rule of exclusion, and without hiding behind the absence
of a legislative mandate, gave to the common law the proceeding in forma pauperis.
If, as excellent authority has stated,4 this was done as "an indulgence arising out of
the humanity of the judges," what can be said for our nineteenth century judges who,
acting in a democratic country, were not even willing to follow the fair provisions of
the common law?

The result is no different than it would be if our bills of rights read, — "Every
subject who can furnish a bond for fifteen or seventy-five dollars ought to obtain
justice freely, completely, and without delay; to all others the courts are closed." In
a democratic government of laws, where the state exists to guarantee through its
administration of justice the security of fundamental rights, it is a sad perversion for
the state, by its law, to cut off any class of citizens from the protection of the courts.
On the one hand, the state through its criminal statutes respecting breach of the
peace and larceny forbids persons to redress their own wrongs or collect their debts by
self-help and remits them to the courts, and on the other it imposes conditions as to
the use of the courts which the poor cannot satisfy.

An epoch-making decision by the Supreme Court of California, rendered in 1917,5
lends judicial sanction to the ideas expressed in this chapter. The case is striking. It
will be recalled that jury fees in California are twenty-four dollars a day, to be paid in
advance. A day laborer, the father often minor children all wholly dependent on him
for support, desired to bring suit in the Superior Court for the wrongful killing of his
daughter and claimed his right to a jury trial. He filed an affidavit that he did not have
more than twenty-five dollars and asked leave to sue in forma pauperis. There is a local

1 Connecticut General Statutes of 1902, §§ 714, 716. 2 23 Wisconsin, 490.

8 Gesfordv. Critzer, 7 111. 698; Grover's Succession, 49 La. Ann. 1060; Haneyu. Marshall, 9 Md. 194; Aklingv. St. Louis
Packet Co., 46 S. W. 24; Miller v. Norfolk, etc., Ry. Co., 47 Fed. 264.

4 31 Harvard L. Rev. (January, 1918) 486.

B Martin v. Superior Court of Alameda County, 54 California Decisions, No. 2874 (October 19, 1917), p. 422.

30 DENIAL OF JUSTICE TO THE POOR

statute permitting such a proceeding before a justice of the peace, but none making
provision for suits in the courts of record. The Superior Court refused the application.

The attorney for the San Francisco Legal Aid Society intervened as amicus curiae,
and the case was appealed.1 The Supreme Court held that the in forma pauperis pro-
ceeding was a part of the English common law, which had become part of the Ameri-
can common law, and that the court had inherent power to grant leave to sue with-
out costs so that justice might not be denied to the poor.

Parts of this decision, which is the first ever to translate into action the fundamen-
tal constitutional principles of freedom and equality of justice, express the situation
so clearly that it is difficult to understand why the majority of courts have always
been blind to it.2

"Imperfect as was the ancient common law system, harsh as it was in many of
its methods and measures, it would strike one with surprise to be credibly in-
formed that the common law courts of England shut their doors upon all poor
suitors who could not pay fees, until Parliament came to their relief. Even greater
would be the reproach to the system of jurisprudence of the state of California
if it could be truly declared that in this twentieth century, by its codes and stat-
utes, it had said the same thing. . . ."

"Again we say that it would be an unmerited reproach cast upon the legisla-
tive branch of our state government to hold that it . . . designed to forbid such
a poor suitor from prosecuting his action according to the laws of the land in
a court of record, when rights might and could be all-important and his recovery
of the utmost consequences.'1

Costs have their place as a deterrent, but they should serve to discourage, not all
litigation, but false litigation, specious pleas, vexatious proceedings taken for delay,
and to insure prompt compliance with court orders. The system of costs in equity
approaches this plan, and in England the use of costs for such purposes is established.3

§7

Costs, like delay, present in the main no fundamental or inherent difficulty. A re-
duction of costs and provision for in forma pauperis proceedings can easily be effected.
~ It is a question of the will to do it. The proposal for direct state aid as

tSll7H7)l(XVlJ

to the expenses which cannot be eliminated goes somewhat farther. It
will depend very largely on the development of state controlled legal aid bureaus,
for in nature and result the embarrassment caused by these unavoidable expenses of
litigation is precisely like that caused by the necessity of retaining and paying an
attorney.

1 Cf. 1 San Francisco L. A. R. 9.

2 See the excellent note in 31 Harvard L. Rev. (January, 1918). 485-487. For a recent decision holding that the re-
quirement of costs is not in contravention of equal protection of the laws, see In re Lee, 168 Pac. 63. In a comment
on this case it is well pointed out that the rule would be tenable if the costs statute provided for in forma pauperis
proceedings. 16 Michigan L. Rev. 192.

3 See American Judicature Society, Bulletin XI. pages 102-107 ; Ibid., Bulletin VI, page 67.

Chapter VI
THE THIRD DEFECT — EXPENSE OF COUNSEL

The office of the attorney is indispensable to the administration of justice,
and vital to the well-being of the court. Justice Killtts in In re Thatcher.1

THE lawyer is indispensable to the conduct of proceedings before the courts, and
yet the fees which he must charge for his services are more than millions of per-
sons can pay. Simple as these propositions are, they are too often forgotten in the
discussions concerning the administration of justice. The emphasis has been on sim-
plification of procedure and reorganization of courts; but even the best procedure in
the most orderly courts will require the presence of the trained advocate. When those
highly desirable ends are accomplished, the problem of the attorney will still remain
the great stumbling-block in the path toward freedom and equality of justice.

The expense of counsel is a fundamental difficulty because the attorney is an inte-
gral part of the administration of justice. While the precise origin of the attorney
. is veiled in some obscurity,2 it is clear that when courts are regularly

constituted and a method of administering justice is established, the

, attorney soon makes his appearance. The real beginnings of court

„ . organization and of a definite procedure were made in the reign of

Henry II, and by the time of Henry III the need of retaining good
lawyers was everywhere appreciated.3 In one of the first year books the reporter makes
the chief justice say, — "B loses his money because he hadn't a good lawyer."3 In our
colonial era repeated attempts to do without lawyers were made, but soon proved
impracticable. With the development of American law and the establishment of
courts the lawyer rapidly assumed the important position in the administration of
justice which he has ever since maintained.4

With a vast body of ever changing law, which a man after a lifetime of devotion
is only beginning to master, it is apparent that the layman, in order to understand
his rights, what he can and cannot do, must have the assistance of counsel.5 We do
not, as in Nero's time, write our laws in small letters at the top of high columns,
but the multitudinous laws in our voluminous case books and statute books are as
hard to learn.6 Similarly, the procedural law, in accordance with which litigation

1 190 Fed. 969; aff. 212 Fed. 801.

* See Brunner: Early History of the Attorney, 3 Illinois L. Rev. (1908) 267.

3 Zane: Bench and Bar in the Golden Age of the Common Laic, 2 Illinois L. Rev. (1907) 18.

4 Warren: History of the American Bar; see particularly the introductory chapter called " Law Without Lawyers."
6 Cf. Root: Addresses on Government and Citizenship, page 159; Proceedings of Virginia Conference of Charities
and Correction in 1916, page 79.

6 The volumes of the reports of our cases number 1300 and include more than 1,113,000 cases. 12 Illinois L. Rev.
349, 350.

32 DENIAL OF JUSTICE TO THE POOR

must be conducted, is a maze to the uninitiated; it is a science in itself. The law per-
mits every man to try his own case, but "the lay vision of every man his own lawyer
has been shown by all experience to be an illusion."1 It is a virtual impossibility for
a man to conduct even the simplest sort of a case under the existing rules of proced-
ure, and this fact robs the in forma pauperis proceeding of much of its value to the
poor unless supplemented by the providing of counsel.2

It is not easy to convey in few words a true impression of the enormous impor-
tance of the attorney in our system of achieving justice, but the mention of the broad
outlines of his work is suggestive. He must start the case properly by satisfying all
the requirements of venue, jurisdiction, service, entry, and the law of pleadings.
When the case is before the court, our system contemplates the doing of justice by
applying general laws to the facts of the particular case. In many cases the attornev
must be ready to assist the court in determining the law applicable, and in every case
he must have ascertained the facts by investigation, must have selected the material
facts admissible according to the law of evidence, must have the witnesses and docu-
ments at hand, and must present the case in accordance with the rules governing
trials. When judgment is rendered, he must transform that into an execution, and
finally undertake to satisfy such execution by levy on the defendant's property. At
every stage the attorney supplies the motive power; without him the judicial ma-
chinery would never move.3 It is estimated that, on an average, all property passes
through the hands of lawyers as often as once in each twenty -five years.4

The lawyer is as necessary as the engineer or the doctor; each is a specialist who
applies the laws he knows for the benefit of the civilized community. Without up-
rooting our entire administration of law it would be as impossible to abolish the
lawyer as it would be the judge. Justice Miller in Ex parte Garland5 stated:

"It is believed that no civilized nation of modern times has been without a class
of men intimately connected with the court, and with the administration of jus-
tice, called variously attorneys, counsellors, solicitors, proctors, and other terms
of similar import. They are as essential to the successful workings of the court
as the clerks, sheriffs, and marshals, and perhaps as the judges themselves, since
no instance is known of a court of law without a bar."

In similar vein, Dean Wigmore has said of the lawyer,6

"He is a necessary part of the State's function of doing justice. In the part he
plays, he is as essential as the judge."

1 Pound: Administration of Justice in the Modern City, 26 Harvard L. Rev. 319. Cf. 1 Kent's Commentaries, 307;
Honestus (Benjamin Austin): Observations on the Pernicious Practice of the Law (1819), page 29.

2 20 N. Y. L. A. R. 10 ; 23 N. Y. L. A. R. 11.

3 " All men at all times and in all places do stand in need of Justice and of Law, which is the rule of Justice, and
of the interpreters and Ministers of the Law, which give life and motion unto Justice." Preface Dedicatory to Sir
John Davies' Reports (1615).

4 Illinois State Bar Ass'n R. for 1903, Part II, p. 102; Carter: Ethics of the Legal Profession (1915), page 36.

5 4 Wall. 333, 384.

6 Carter: op. cit.. Introduction, page xxii ; see also, page 31; and 6 Cleveland L. A. R. 6.

EXPENSE OF COUNSEL 33

§ 2

The inability of the poor to pay for the services of counsel has often been stated, *

and the general fact is known. The vast number of persons who are thus debarred

J.,. „ from legal advice and the essential services of the lawyer in court,

, p p however, is not realized. It is possible to form an estimate of what

., _ , this number must be. It is known that in 1913 the average wage of

JOT* i onti^pL

the clients of the Cincinnati Legal Aid Society was $10 per week,2 and
that in the year 1916 out of 1981 cases analyzed by the Legal Aid Society in Newark,
1579 or 80 per cent of the applicants earned less than $20 each week.3 It is safe to say
that single persons earning less than $500 yearly and that married persons, with de-
pendent families, earning less than $800 each year are never in a financial position
where they can afford to pay any substantial sum for attorneys' services.4 Within these
classes, according to Dr. King,5 there are 3,758,000 single persons and 7,040,000
families. Inasmuch as each member of a family, the wife and children as well as the
husband, may need legal advice and assistance, it is proper to multiply the families6
out to their number of constituent individuals.

From this calculation it appears that there are in the United States over 35,000,000
men, women, and children whose financial condition renders them unable to pay anv
appreciable sum for attorneys' services. It is true that in country districts and in the
smaller towns such people generally are able to secure assistance from lawyers7 as a
matter of kindness or charity ; consequently it is primarily in the larger cities that
inability to pay fees results in a denial of justice. Even if we were to eliminate, how-
ever, the seventy-eight per cent8 of our population living in cities and towns con-
taining less than one hundred thousand inhabitants, there would still remain nearly
8,000,000 persons who do not know where to turn for legal advice and assistance
when the need arises. These figures are only approximations. Cut them in two and
it is still perfectly apparent that a thoroughgoing, equal administration of justice
must take cognizance of, and provide for, a class of citizens, numbering millions, who
cannot secure for themselves the legal services without which the machinery of jus-
tice is unworkable.

§3

This is the great difficulty. Part of the need for attorneys' services is undoubtedly
artificial. There is no reason why a court summons should read, "We command you

1 Hyde: Reorganization of the Legal Profession, 8 Illinois L. Rev. (1913) 243; Doerfler: Duty of the Lawyer as an
Officer of the Court, 24 Green Bag (1912), 74; Summary of the Manly Report of the United States Commission on
Industrial Relations, page 9 ; Office of the Public Defender (Los Angeles), page 22; 23 N. Y. Legal Aid R. 10.

2 6 Cincinnati L. A. R. 10. 3 New Jersey L. A. R. for 1916, Table 6, page 11. * Cf. 3 Cleveland L. A. R. 5.
6 King: The Wealth and Income of the People of the United States (1915), page 224.

6 Ibid., page 129. The average family is 4.6 persons.

7 See Chapter XX, The Present Position of Legal Aid Work, page 188. 8 King: op. cit., page 16.

34 DENIAL OF JUSTICE TO THE POOR

to appear before our Justices of the Municipal Court on Saturday the twenty -first day

of December, a.d. 1918, at nine o'clock in the forenoon. Fail not of ap-

' j pearance at your peril;"1 so that it is necessary to employ counsel to

explain that the plain English words do not mean what they say, but

Fundamental . , ,, , • j . u e j.u n

in law mean that you are not required to appear betore the court at all,

■" " but must file an answer with the clerk any time on Tuesday, December

the twenty-fourth.2 A little modernizing will eliminate such purely parasitic services.

But with all reformation of procedure and reorganization of courts the true and
essential functions of the attorney will remain and the need for his services will, as
to the vast proportion of advice work, consultation, negotiation, and litigation, be
the same. This great underlying problem cannot be summarily disposed of or dis-
missed with few words. The remainder of the report is essentially a presentation and
examination of the various methods and agencies, both those within and those with-
out the judicial system, which have come into existence and are being utilized in the
endeavor to remove this inequality and thereby to promote the ideal of freedom and
equality of justice.

1 Form of summons in nse by the Municipal Court of the City of Boston.

2 Compare the need of employing attorneys to interpret the complicated New York Codes. Root: Addresses on Gov-
ernment and Citizenship, pages 435, 469.

PART II

AGENCIES SECURING A MORE EQUAL ADMINISTRATION

OF THE LAWS

Chapter VII
THE NATURE AND POSITION OF THE REMEDIAL AGENCIES

The fundamental difference between the law of the nineteenth century and the
law of the period of legal development on which we have entered is not in the
least due to the dominance of sinister interests over courts or lawyers or jurists.
It is not a conflict between good men and bad. It is a clash between old ideas and
new ideas, a contest between the conceptions of our traditional law and modern
juristic conceptions born of a new movement in all the social sciences. Roscoe
Pound in Justice According to Laio.

§1

THERE are in the United States to-day a number of agencies and methods which
are attacking and to an extent remedying the inequalities caused by our cus-
tomary and traditional method of administering justice. Most of these
Introductory : r ., .. i n i <* i

^ agencies are the creations and developments of recent years, some hav-
ing been brought into being for the direct purpose of securing more adequately the
rights of the poor, others having this only as a collateral object, and not a few being
forced, by the enormous pressure which has made itself felt, to provide and furnish
some assistance to poor persons in matters within their jurisdiction.

In general, and with, only a rare exception here and there, it must be said that these
agencies and their developments have not been brought about by judges acting as a
body in charge of the administration of justice, or bylawryers acting as a group through
their recognized Bar Associations. In addition to the rigidity of court organization
which has.made progress difficult, there has seemingly been an ignorance of, or indif-
ference to, the disadvantages under which the poor have struggled. The Constitution
of Illinois required the judges of the Supreme Court to report annually to the Gov-
ernor such defects in the laws as they might find, together with suggestions for im-
provement, but under this general power nothing * was done. The Michigan courts
neglected for years their wide rule-making powers, with the result that the legislature
was forced to pass several thousand sections relating to practice and procedure.2 The
Bar, likewise, has been slow to take up the task, with which it may fairly be charged,
of working for the steady betterment of justice.3 In an effort to arouse the Bar from
its conservatism and inertia to a more lively sense of the splendid possibilities of its
concerted action, Dean Vance of the University of Minnesota Law School said : 4

"Bluntly put, the American lawyer has proved a failure. In no other free and
civilized country are the laws so ill-administered as in these United States. We
lead the world in most of the great struggles mankind is making, but in the

1 Cf. Gilbert: A Synopsis of a Bill for an Act in Relation to Courts to be Introduced in the l*7th General Assembly
(1910), page 5.

2 Harley : A Unified State Court System, page 3.

3 Cf. Gilbert: op. cit., page 19: Carter: Ethics of the Legal Profession, Introduction by Dean Wigmore, page xxiii ;
73 Ann. Am. Ac. Pol. & Soc. Science, 5.

4 Storey: Reform of Legal Procedure, page 5.

38 THE REMEDIAL AGENCIES

administration of the law America lags two generations behind the rest of the
civilized world. No constructive reforms of a comprehensive kind have been seri-
ously attempted since the days of David Dudley Field, now passed a half cen-
tury and more."

When the propriety of contingent fees has been discussed, lawyers have not been
wanting to proclaim the necessity of giving the poor an equal chance, but one may read
the proceedings of all the bar associations and find no mention made of taking care
of those cases — the vast proportion of the cases of the poor — which cannot pay even
a contingent fee.

These things are said simply because they explain, in large measure, the present
situation of the remedial agencies and their peculiar relation to the regular adminis-
tration of justice. It is due to the zeal and enthusiasm of small and isolated groups of
judges, lawyers, and laymen, working independently in different places, that the path
of reform has been blazed. The natural result has been that agencies designed to
meet the same need are, in different localities, entirely dissimilar, and that they lack
any semblance of uniformity or cooperation. Each is virtually a law to itself. And the
further inevitable result has been that the agencies have developed as patches on, and
additions to, our judicial machinery instead of as integral parts of it. Although
they are administering justice as much as the courts themselves, many of them exist
to-day outside of our traditional legal machinery, as extra-legal institutions, some in
the eyes of the law having no relationship whatever to the administration of justice
and others standing in an ill-defined relationship.

Further, if duplication of tribunals, wasted effort, and unnecessary friction is to be
avoided, and unless history is to reverse itself, these agencies must ultimately become
incorporated as integral parts of our judicial institutions. This process of assimila-
tion, which indeed has already begun, must be kept steadily in mind, for some of the
advantages claimed for the remedial agencies are those of an extra-legal organiza-
tion, of justice without law, which in all probability will be thoroughly changed, if
not reversed, as the process of assimilation goes on.

§2

Any attempt to reduce to a hard and fast classification the various agencies which

are playing a part in equalizing the administration of the law is somewhat arbitrary

. because the newer agencies and methods for disposing of controversies,

_ having grown up locally and independently, do not readily conform to

type. Each has a different jurisdiction and organization; even those

bearing similar names and designed to meet the same purpose differ so

much in degree as to constitute a difference in kind. Nevertheless, some grouping is

necessary so that an orderly presentation may be made. The following classification

will be used:

THEIR NATURE AND POSITION 39

1. Small Claims Courts.

2. Conciliation Courts and Conciliation in General.

3. Arbitration by Courts and Other Organizations.

4. Domestic Relations Courts.

5. Administrative Tribunals.

6. Administrative Officials.

7. Assigned Counsel.

8. Defenders in Criminal Cases.

9. Legal Aid Organizations.

§3

It is the purpose of the following chapters to examine these various agencies, study
their history, set out the work they have done, and from that background to try to
ascertain how far they now are, or may be developed into, sound meth-
"" ods for more nearly equalizing the administration of justice.

One simple line of approach which is helpful is made possible by the
° fact that the legal difficulties of the poor, though legion in number,

fall as to a high percentage of the total into these four well-defined groups:

1. Claims for wages.

2. Domestic difficulties.

3. Personal injuries.

4. A vast number of miscellaneous small debts and claims, as for rent, groceries,
loans, and arising out of chattel mortgages and assignments of wages, in
which the poor may appear either as plaintiffs or defendants.

Many of the agencies deal specifically with these problems. Their proper solution
means a vast improvement in the legal position of the poor, so that this is in the
nature of a test which can be applied to the agencies in appraising them.

The real test of their success, however, will steadily be their effect on delays, costs,
and above all on the great stumbling-block of the expense of employing attorneys.
The one connecting thread which runs through them all is this attack, often dis-
guised and sometimes unconscious, on the fundamental difficulty of the expense of
counsel. There are conceivably three solutions: the first, to abolish the expense by
abolishing the attorney ; the second, to eliminate the expense by making the attor-
ney's services unnecessary ; and the third, to avoid the expense to the poor by sup-
plying them with attorneys gratuitously.

All three methods, singly or in combination, are being tried. Before passing to a
consideration of each group of agencies in detail, it may be helpful to visualize the
general situation by means of the following simple diagram:

THE REMEDIAL AGENCIES

Chart showing the Three Methods used by the Nine Agencies in
Attacking the Problem of the Expense of Counsel1

PROHIBITING
THE ATTORNEY

MAKING THE
ATTORNEY UNNECESSARY

SUPPLYING THE ATTORNEY OR
SOME ONE TO PERFORM HIS FUNCTIONS

1 The proportions are not based on mathematical computations. Sufficient figures do not exist. The chart gives a
correct impression of: 1. The total extent to which each method is used. 2. The present relative importance of the
different agencies. 3. The proportionate extent to which each agency uses each method.

Chapter VIII
SMALL CLAIMS COURTS

The splendid thing about Judge Levine's court [the Cleveland
court for small causes] is that, for the mass of cases, it does jus-
tice where before now there was no court justice at all. It fills a
vacant space. John H. Wigmore.1

§ 1

THE inability to provide justice in small causes has always been one of the weak-
est points in our system of administering justice. From the days of ordeal by bat-
tie, the method provided by the common law for proving and reducing
n.i to judgment any type of small claim has been cumbersome, slow, and

expensive out of all proportion to the matter involved.2 Our legal
. system has taken too literally the ancient maxim, "de minimis non

curat lex."3 A complicated procedure requires the attorney, but the
expense for his services is more than the traffic can bear. It was once asked at a meet-
ing of the American Bar Association whether a lawyer in suing for seven dollars wages
due his client, a blacksmith, was justified in charging a fee of half that amount.4
The question reveals the common dilemma — the services were worth the amount
charged and yet, to the blacksmith, it would hardly be satisfactory to collect seven
dollars at a cost of three dollars and a half. As Dean Pound puts it : 5

"For ordinary causes our contentious system has great merit as a means of
getting at the truth. But it is a denial of justice in small causes to drive liti-
gants to employ lawyers and it is a shame to drive them to legal aid societies
to get as charity what the state should give as a right."

Similarly, court costs constitute an expense prohibitory to small litigation. The
man hired at fifteen dollars a week who is put off the first week and not paid the
second has a valid claim for thirty dollars but often not a dollar in his pocket. In
addition to an attorney's fee, he cannot pay court costs because he has not been paid,
and yet because he has not been paid court action is imperative. It is indeed a vicious
circle, but within that circle thousands of unpaid wage-earners have been caught.

Delay plays its part by permitting a debtor, who has no real defence, to file an
appearance and answer and interlocutory motions, to have the case continued once
or twice, and then, when it is finally called for trial, to default.6 This serves to hold

1 American Judicature Society, Bulletin VIII, page 23.

2 Justice Strasburger (of the Municipal Court for the District of Columbia): A Plea for the Reform of the Inferior
Court, 22 Case and Comment (1915), 20 : Grinnell : Constitutional History of the Supreme Judicial Court of Massa-
chusetts, 2 Mass. L. Quarterly (1917), 472, note ; Preliminary Report on Efficiency in the Administration of Justice,
page 29.

3 Cf. 1 Hartford L. A. R. 6. 4 33 Am. Bar Ass'n R. 79.

6 Pound: Administration of Justice in the Modern City, 26 Harvard L. Rev. 318.

6 In the Boston Municipal Court the number of defendants who defaulted when the case was finally called for trial
numbered 2165 in 1913, 2388 in 1914, 2385 in 1915 (eleven months). See Report for 1916, page 54. For a statement as to
appeals taken solely for delay see Ibid., page 7.

42 THE REMEDIAL AGENCIES

the plaintiff off for months, to cause him loss of time in court attendance, and to rob
the ultimate judgment of much of its worth.1

Small tradespeople to-day are forced to the practice either of wiping all small claims
off their books or of selling them at a ridiculous discount to professional collection
agencies. They have the possible relief of increasing the price of the necessities they
sell, thereby adding the waste of the judicial system to the cost of living. The wage-
earner and the small lodging-housekeeper, under conditions of modern competition,
have not even that relief; they have been obliged to stand their losses.

Claims of this sort are often contemptuously spoken of as "petty litigation." But
it is in this very field that the courts have their greatest political effect. In every urban
community these are the cases of the large majority of citizens. As they are treated
well or ill, so they form their opinion of American judicial institutions.2 The vast
number of such cases demanding attention cannot be told from our court dockets, for,
as Dean Wigmore says,3 "this class of cases simply does not ordinarily appear in the
regular courts." An idea may be gained from the English County Courts, where pro-
vision is made for "petty litigation." Of 1,224,000 cases entered in 1913, 1,207,000,
or 98i per cent, were for claims under £20, and the average claim was about £3.4 For
such matters, Mr. Root has said,5 " Our procedure ought to be based upon the com-
mon intelligence of the farmer, the merchant, and the laborer. And there is no reason
whv it should not be. I say it not without experience in legal procedure. There is no
reason why a plain, honest man should not be permitted to go into court and tell his
story6 and have the judge before whom he comes permitted to do justice in that par-
ticular case, unhampered by a great variety of statutory rules.'Tnstead of that, "we
have got our procedure regulated according to the trained, refined, subtle, ingenious
intellect of the best practiced lawyers, and it is all wrong."

This deplorable condition is not the result of the evil machinations of any group
or class; it is the consequence of the failure of the judicial system to keep pace with
the changing conditions of life. In our judicial history small cases were first entrusted
to justices of the peace. This plan for a while gave simplicity and despatch, but
when applied to cities it failed utterly. The justices, being subject to no supervi-
sion, and depending so much on their fees that J. P. came to mean "Judgment for
the Plaintiff," formed unholy alliances with collection agencies, instalment houses,
and the like, and very generally became actually corrupt.7 They were so strongly

1 Strasburger: A Plea for the Reform of the Inferior Court, 22 Case and Comment (1915), 23; Pound: Administra-
tion of Justice in the Modern City, 26 Harvard L. Rev. 319; Alger : Sicift and Cheap Justice, 27 World's Work (1913),
167; 11 N. Y. Legal Aid Rev. No. 4, p. 8.

- Julius Henry Cohen : The Municipal Court Bill, 5 N. Y. Legal Aid Rev., No. 2, p. 9; Root : Addresses on Govern-
ment and Citizenship, pages 135, 136, 185.
3 American Judicature Society, Bullet in V ill, page 23.

* Rosenbaum: Studies in English Court Procedure (1916), vol. ii, Tlve Crninty Courts, pages, 1, 2. Cf. 1 Cleveland
Municipal Court R. (1912), 51.

5 Root: Addresses on Government and Citizenship, page 231.

6 This is the system in the English County Courts. See Parry: The Law and tlie Poor, page 102.

7 See Proceedings of the First Conference for Better County Government in Nevt York Stated9l4\ pages 47, 48;

SMALL CLAIMS COURTS 43

entrenched in local politics that the process of ousting them, which is not yet com-
pleted, has been long and difficult. They have aptly been called "those barnacles of
jurisprudence"1 because they have clung on long after their usefulness expired.

In the cities, the justice of the peace was first supplanted by specially created ma-
gistrates who, as the cities continued to grow, became just as inefficient and even more
corrupt.2 Finally, they were succeeded by the organized modern municipal court of
the type that is now familiar. With the municipal court came honest, trained, and
capable judges, but also there came the rules of pleading, of procedure, and of evi-
dence. Honesty and certainty were secured at the sacrifice of simplicity and speed.
There has been a steady tendency to increase the jurisdictions of the municipal
courts so that they have lost sight of the little cases ; expense and delay have been
allowed to creep in, with the result that small claims have not been cared for satis-
factorily.3

In a few communities the last and logical step has been taken of combining the
simplicity, speed, and cheapness which were sought in the justice of the peace plan4
with the honesty and efficiency of the municipal court by a new type of court termed
variously "small claims court," "small debtors' court," "conciliation court," and
"court for small causes." The name of "small claims court" is the most descriptive
and, to avoid confusion, will hereafter be applied to all such courts. Small claims courts
exist in Cleveland, Chicago, Minneapolis, Portland (Oregon), and in three cities in
Kansas.5 They present so many differences, some being fundamental, that before any
generalizations as to the nature, the success, and the future of this type of court are
warranted, they must each be described.

§2
The Kansas small claims courts, which are to be found in Topeka, Leavenworth, and
Kansas City under the name of "Small Debtors' Courts," were made possible by a
1913 act of the legislature.6 The law was drawn by the attorney-general, who, so the
story goes, had the inadequacy of our regular courts brought vividly to his attention

1 Kansas City L. A. R. 13: Nashville L. A. R. for 1915-16, page 2; Baer: Justice for the Small Man, 90; The Century
(1916), 144, 146; Harley: Ultimate Types of Inferior Courts and Judges, 22 Case and Comment, 3; American Judica-
ture Society, Bulletin YUI, page 26; Ibid., Bulletin VTI-A, page 57; Fuessle: Making Americans by Justice, 65
Collier's (July 3, 1915), 27.

1 Olson : Proper Organization and Procedure of a Municipal Court, in 7 Proceedings of the American Political Sci-
ence Association (1910), 80.

2 Harley : Ultimate Types of Inferior Courts and Judges, 22 Case and Comment, 4; The Forgotten Army, Report
of Six Tears' Work of the Committee on Criminal Courts of the New York Charity Organization Society (1918),
page 11.

s The best illustration of this is afforded by the New York Municipal Court which, when created, was called " The
Poor Man's Court." See Root: Addresses on Government and Citizenship, pages 135, 185 ; Frederick De Witt Wells
(a Justice of the New York Municipal Court): The Man in Court (1917), page 101. The District Court in Jersey City
has undergone a similar evolution.

* See American Judicature Society, Bulletin VTI-A, pages 56, 57, and also pages 71, 72.

* The New York Municipal Court with its 1917 Rules for Arbitration has in effect provided a small claims court.
This is considered in detail in Chapter X, Arbitration, page 71.

6 Kansas Session Laics 0/1913, c. 170, p. 291; General Statutes of Kansas (1915), c. 27, art. 19, §§ 3316-3327.

44 THE REMEDIAL AGENCIES

by the fact that a washerwoman, in whom he was interested, was owed three dollars
by a well-to-do man, who refused to pay her and whom she was un-
able to sue because she could not pay the necessary counsel fees and

costs.1 Having: in mind the informality of some of the Canadian courts
Courts . .

in hearing small matters,2 he wrote a bill, which was passed and be-
came law on March 15, 1913. This law merits partial quotation because it repre-
sents the violent reaction that is taking place against our traditional procedure which
has become so formal, costly, and inefficient.3

"Section 2. It shall be the duty of the appointing power — the board of county
commissioners or the mayor — to select as judge of such small debtors1 court
some reputable resident citizen of approved integrity who is sympathetically in-
clined to consider the situation of the poor, friendless and misfortunate, . . . ''

"Section 3. The judge of the small debtors' court may hold his court in his own
home, or in his own office or place of business, or at some place provided by the
power appointing him."

"Section 6. Before entertaining any suit in such small debtors' court, the plain-
tiff must appear before the judge of the court personally, . . . and state his case
orally, and if the judge believes the plaintiff has a cause of action he shall docket
the same by an entry in his docket, and shall summon the defendant orally,
or by United States mail, or by telephone, and try the cause considerately and
summarily and give judgment thereon. But no costs shall be assessed or charged
to either party."

"Section 10. The judge of the small debtors' court shall serve without pay, fee,
or award ; and no attorney at law or any other person than the plaintiff and
defendant shall concern himself or intermeddle in any manner whatsoever with
the litigation in the small debtors' court, nor shall it be necessary to summon
witnesses, but the judge may informally consult witnesses or otherwise investi-
gate the controversy between the parties, and in every case give judgment ac-
cording to the very right of the cause."

The act restricts the courts to small debts and accounts (thereby excluding all
matters sounding in tort) not exceeding twenty dollars in amount, owed by defend-
ants who reside in the county or city of which the court has jurisdiction.4 Further,
the plaintiff must satisfy the judge not only that he has a good cause of action, but
that he cannot afford to employ counsel or use the regular courts.5

In the Topeka court from May 18, 1913, to May 18, 1914, 378 cases were filed
and in addition about 50 were settled at once before any docket entry was required.6
The claims ran from the twenty dollar maximum down to a claim for forty-five cents
brought by a newsboy. The average judgment rendered was $4.65. In the Leaven-
worth court, 100 cases were docketed and heard during its first year, and another

1 Appo: Justice Tempered with Mercy, 112 Outlook (1916), 153.

2 For a brief statement of the informal procedure in Toronto see American Judicature Society, Bulletin VIII, page 35.

3 Ibid., page 48. * Kansas Session Laws of 1913, c. 170, § 4. 5 Ibid., §§ 5, 11.
6 22 Case and Comment, 30.

SMALL CLAIMS COURTS 45

100 matters were disposed of without entry.1 The Kansas City court tried its first case
on August 25, 1913, and from that date until October 17, 1916, has been called upon
in about 400 matters. Wage claims furnish the greatest number of cases. Most of the
judgments rendered are paid2 and very few appeals are taken.3

How these courts meet the three defects of the customary administration of jus-
tice is expressed in the law and carried out in practice. Costs are abolished. Delays
in obtaining a trial are eliminated, for the judge can hold his court day or night and
at any place, so that when he telephones the defendant to appear he can always fix
a reasonable time for appearance within a day or two. It is sought to prevent delays
through appeal by denying any appeal to the plaintiff and by making it burdensome
to the defendant.4 The fundamental difficulty of the attorney's expense is met by the
legislative fiat forbidding attorneys from "intermeddling" in cases before these courts.
This prohibition would not, of itself, be successful ; the problem is really solved by
the procedure of the court and the functions of the judge. The judge himself makes
out the simple forms which start the case, he summons the defendant and any ne-
cessary witnesses, he is authorized to investigate the facts in any manner he chooses,
and at the hearing the parties tell their own stories under the direction of the judge
without regard to rules of evidence or trial procedure. It is therefore more accurate
to say that these courts avoid the expense of counsel by making the presence of coun-
sel unnecessary in their proceedings. The act further attempts to equalize the situa-
tion on appeal by providing that no pleadings shall be required in the District Court
and that the defendant, if he loses, must pay fifteen dollars to the plaintiff for his
attorney's fees.

Aside from their extremely narrow jurisdictional limits, these courts are unsound
in two particulars. They represent a recurrence of the old unfortunate tendency of cre-
ating new courts for new needs, which inevitably causes duplication and confusion.
More serious, thev indicate a renewed attempt to secure j ustice without trained j udges
and without law. Any reputable layman may be the judge, and his duty is declared
to be to give his decision not according to the law but according "to the very right
of the cause.1' This means justice according to individual conscience after the manner
of an Eastern Cadi.5 One may doubt whether in the long run this plan can succeed
when like plans throughout our legal history have always ended in failure. At the
present time the courts are superior to the act which formed them. Judge Lee of the
Kansas City court is a capable, trained lawyer of integrity, whose notion of right
generally conforms with the rule of law. But in a system without supervision or re-

1 American Judicature Society, Bulletin YIII, page 48.

2 Where the defendant fails to pay, the judge certifies his judgment to the District Court so that execution may
issue. In Topeka, out of 326 judgments, only 30 were so certified, and in Leavenworth only 2 per cent were cer-
tified.

3 In three years only 15 appeals have been taken from the Kansas City Court; 6 being taken by one firm.

4 Kansas Session Laws of 1918, c. 170, § 8.

6 Cf. American Judicature Society, Bulletin YIII, page 48.

46 THE REMEDIAL AGENCIES

sponsibility, lacking in all the safeguards demonstrated by history to be necessary,
there is no guarantee for the future.

In fact, these courts are less like courts and more like legalized legal aid societies.1
The provision that they are to assist only such persons as cannot afford to employ
attorneys is directly analogous to the legal aid rule, the judge must be satisfied as
to the merit of the case as must the legal aid attorney, and in his decision the judge
is only slightly more judicial than the legal aid attorney who always is desirous of
hearing both sides and of acting accordingly. The only difference is that the judge
of the small claims court has the sanction of the state behind him, and his decision
when made becomes a legal judgment.

The great accomplishment of these courts is that they have concretely demon-
strated that justice administered without regard to procedural and evidential rules
of law not only meets with popular approval2 but is entirely feasible; in other words,
that as to small civil causes the three defects in the traditional administration of jus-
tice can be readily overcome.

§3

The small claims court of Portland, Oregon, technically known as the Small Claims
Department of the District Court for Multnomah County, was created by act of legis-
lature in 1915. 3 Judge Dayton, and the persons interested in the pro-
posal,4 had the Kansas courts in mind, so that the law in many of its
sections follows its Kansas prototype. Jurisdiction is limited to money
claims not exceeding twenty dollars,5 there are no pleadings, the hear-
ings are informal "with the sole object of dispensing speedy justice,"6 and the judge
may consult the witnesses informally and otherwise investigate the case.7 Costs are
not abolished, but are limited to seventy -five cents,8 so that the provision requiring
process to be served by court officers9 does not cause excessive expense. The plaintiff
cannot appeal, and if the defendant does, he is liable to the fifteen dollars attorney's
fee and must give a bond to secure all costs.10 On this appeal in the Circuit Court, no
pleadings are necessary.10 Attorneys are forbidden to appear in the court, with a sav-
ing clause that the court may in its discretion admit them.11

The procedure differs in that there are no restrictions concerning the poverty of
the plaintiff or as to the merit of his cause. He is entitled, as of right, to go before

1 Walton Wood recommended that in his civil legal aid work in Los Angeles he be given power to arbitrate dis-
putes and to render judgment. See Tlie Place of the Public Defender in the Administration of Justice, page 26. If
this had been done, his office would have become exactly like a Kansas small claims court.

2 These courts have attracted wide attention and elicited much comment. In addition to the articles already cited
see The Docket (1916), page 1280 ; La Follette's Magazine for October, 1915 ; Boston Evening Transcript for February
6, 1915.

3 Oregon General Laivs of 1915, c. 827. * Cf. Report of the Portland Associated Charities for 1913, page 47.
6 General Laws of 1915, c. 327, § 1. 6 Ibid., § 9. 7 Ibid., § 8. " Ibid., § 3.

°Ibid., §4. 10lbid., §12.

u Ibid.. § 8. In practice attorneys seldom ask and seldom are allowed to appear.

SMALL CLAIMS COURTS 47

the clerk of the District Court, who thereupon fills out the appropriate form of claim,
has it signed and sworn to by the plaintiff,1 makes out a summons to the defendant,
and assigns the date for hearing,2 which must be at least five days, but not more than
ten days, after service of the summons.3

This court is a great improvement over its Kansas model in that it secures the
advantages of simplicity, cheapness, and speed, without sacrificing any fundamentals.
It is justice by trained judges who5 although given wide discretion by the statute,4
in fact decide cases according to substantive law and not their own arbitrary opinion
of right and wrong. It is an entire breaking away from our traditional justice con-
ducted according to procedural and evidential law, but its justice is nevertheless as-
certained and administered according to substantive law. It thus reemphasizes the
lesson afforded by the Kansas courts, that justice in small causes can be secured with-
out reliance on technical procedure and without the assistance of counsel. Further,
the court has the advantage of not being a separate court, but a department of the
District Court (which corresponds to a municipal court). There is a curious and
wholly unnecessary taking over of the Kansas idea of a distinct court in the provision
that a judgment of a judge sitting in the small claims department is not automati-
cally given full legal effect, but must first be certified to the clerk who enters it in
the District Court docket, whereupon it acquires validity and execution may issue.5

The court has been eminently successful. Its procedure appeals so strongly to the
average person that in known instances plaintiffs with valid claims over twenty dollars
have deliberately scaled them down in order to be able to avail themselves of the
speed and inexpensiveness of the small claims department. The court has published
no report, but from an examination of its docket made November 6, 1917, the volume
of its business was ascertained to be:

From May 24, 1915, to May 24, 1916 705 cases

From May 24, 1916, to November 6, 1916 1123 cases.

When one considers how defendants in the regular courts use the technicalities of
procedure and evidence to delay and to defeat valid claims, it would seem inevitable
that under the Portland plan defendants would appeal to the Circuit Court where,
by having attorneys, they could interpose technical objections. The docket, however,
shows that out of the total 1828 cases in seventeen months there have been only two
appeals. It seems a fair conclusion that the spirit and procedure of the court com-
mand such respect that its judgments are accepted.

There was some indication in Portland of the existence of a factor that must be
reckoned with because it is the greatest menace to the success of this kind of court.
There was evidence that not all of the judges were by temperament and training
qualified to conduct the court. A weak, or incapable, or narrow-minded judge can do
more harm in a court of wide discretion, as a small claims, a juvenile, or a domestic

1 General Laws of 191b, c. 327, §2. * Ibid., § 3. 3 Ibid., § 6. * Ibid., § 8. * Ibid., §13.

48 THE REMEDIAL AGENCIES

relations court, than anywhere else. The greatest latent flaw in the otherwise admir-
able conception of this type of court is the demand that it makes for superlative
judges, without whom it cannot succeed.

§4

The Cleveland small claims court, technically known as the Conciliation Branch of the

Municipal Court, has had a most interesting development. Though still lacking in

certain important attributes, it stands to-day as the most nearly per-

. feet type of a court for small causes to be found in the United States.

_ The Municipal Court of Cleveland was established1 in 1912 to rid

C ouirt

the city of the intolerable abuses of the justice of the peace system.

The public opinion which secured the legislative enactments demanded not only
an honest administration of justice, but likewise a simple and easy judicial proced-
ure.2 As a first attempt to realize this, the court passed two rules,3 one providing for
assistance by the clerk to parties having small cases and the other for arbitration by
a judge. The latter was not acted upon, but under the former a clerk was designated,
beginning February 24, 1912, to help parties draw and file the necessary papers
required by the municipal court procedure and also to endeavor to adjust claims
between parties where opportunity offered.4 William F. Burke, chief clerk of the civil
branch of the court, was assigned to this novel post, and with rare insight and great
courage he began in all claims involving small amounts of money and the detention
of personal property to try to bring the parties together and secure a settlement
without litigation. His method was simply to write a letter — which had no legal
standing whatever — to the defendant, inviting him to call and talk the matter over.
Thus far the work was exactly like that of a legal aid society. In 1912, about twelve
hundred cases were successfully disposed of in this way.5 The judges were greatly
impressed, and decided to expand the idea from a ministerial to a judicial function.
Their deliberations were going on during the latter part of 1912 at precisely the
time when a similar but independent line of thought was developing in Kansas. The
amendment to the municipal court act permitting service by mail made the next step
possible, and on March 15, 1913, — two months before the first Kansas Small Debtors'
Court, — the Conciliation Branch was opened.6

The effect of the mail service law was to change the clerk's letter to the defendant
from a mere request to a legal summons by the simple expedient of having the letter

1 For the acts see 99 Ohio Laws, 362; as amended, 101 Ohio Laws, 156.

2 1 Cleveland Municipal Court R. 15; cf. White: Conciliation Branch of the Municipal Court, 13 N. Y. Legal Aid
Rev., No. 4, p. 2.

3 See Rule 24, "Clerk to assist Parties in Small Cases," and Rule 25, "Settlement Room," quoted in 1 C. M. C. R.39.
1 1 C. M. C. R. 49: 2 Ibid. 38.

6 1 Ibid. 49 (table giving detailed statistics): Moley: Justice through Common Sense, 33 The Survey (1914), 101.
6 2 C. M. C. R. 38.

SMALL CLAIMS COURTS 49

deposited in the mail box by the bailiff. Thereby the court acquired legal jurisdiction
and could proceed to hear the case or enter an automatic default according as the
defendant answered or neglected the letter summons.

The present course of procedure is as follows : A person goes to the clerk of the
Conciliation Branch, who has a separate office, exactly like a legal aid society, where
the person may feel at home and at liberty to talk the difficulty over with the clerk.
If the dispute seems one that offers fair hope of immediate adjustment, the clerk,
like a legal aid society attorney, telephones or writes the defendant and endeavors to
secure an amicable settlement. If that fails, or if the case at once appears likely to
demand judicial consideration, the clerk fills out in the court docket a very brief state-
ment of claim, which the plaintiff signs. A date for the hearing — the defendant being
entitled to three days' notice — is at once assigned, the plaintiff being given a little
card bearing the date, the time, the court room, and the court address and telephone
number. A summons is made out, and delivered to the bailiff, who deposits a copy in
the mail box and certifies to that effect on the original summons. At first registered
mail was used, but to-day ordinary mail is employed because in the event of a defec-
tive address it is returned more promptly. If the summons cannot be delivered, it is
returned at once to the court and the bailiff amends his return of service. The sum-
mons states the precise time and the exact room for the hearing, and the case is tried
at that time and place.

The small claims court room is like any other court except that attorneys are
noticeably absent. They are not excluded by law, but the attitude of the court and
the opinion of the bar is to discourage their attendance. Omitting the conciliation
feature for the moment, the court tries the case by letting the parties tell their stories,
and by questioning them and permitting them to question each other. The court is
as dignified, its proceedings are as orderly, it commands as much respect as a supreme
court. The judgment rendered by the court is final on the facts, and an appeal on
law goes directly to the Court of Appeals.1

The court, handles only matters involving less than thirty-five dollars. It is not
limited to actions of contract or debt.2 All kinds of small matters, including torts,
have been heard and determined. While the court has had no difficulty with actions
of tort for the detention of personal property (particularly the retention of trunks and
furniture under claims of landlord's or lodging-housekeeper's liens), it has often found
that its procedure is not adapted to torts for negligence, as in automobile collisions
causing property damage. If parties appear with counsel, or with a large number of
witnesses, or if the issues involve extended accounts or any problem not adapted to
informal treatment, the case is transferred from the small claims court to the reg-
ular trial court, which is accomplished merely by the judge's direction to that effect,
inasmuch as both courts are simply departments of the one municipal court.

1 4 C. M. C. R. 35. Originally there was an intermediate appeal to the Court of Common Pleas.

2 Conciliation Branch, Rule 1; 2 C. M. C. R. 18.

50 THE REMEDIAL AGENCIES

The work of the small claims court may be summarily presented as follows :

Year Cases disposed of Amount of Judgments
1913 l 2367 $10,410.53

19142 4719 20,752.64

1915 3 5106 32,872.14

1916* 5182

These statistics show only the cases that reach the trial stage. A large number are
disposed of through the advice, correspondence, and negotiation of the clerk's office. A
statement of this work appears in each annual report;5 that for 1916 gives an accurate
idea of its extent. Two hundred and twelve money claims amounting to $1896.69 were
settled without commencement of suit for $1736.24; 106 were found on investigation
to be without merit; and in 28 the plaintiffs dropped the proceedings. In 197 claims
for the detention of personal property, 107 were settled by a surrender of the prop-
erty on receipt of a letter from the clerk's office, 37 had no merit, and 13 were dropped
by the claimants. The clerk assisted parties to institute 38 actions of replevin. There
was much further miscellaneous work done. This is an excellent illustration of legal
aid work performed under judicial direction, and at public expense.6

The Cleveland small claims court is unquestionably a remarkable institution. Like
the Portland court, it is a branch or session of the regular municipal court, so that
no difficulties of jurisdiction are created. It exists not under statutory regulation but
under rules of the municipal court, which is a preferable plan because changes can
be more readily made as needs arise or as experience may dictate; thus its limit of
thirty-five dollars may at any time be raised. It is a court of election, not compulsion.
The original rule requiring all cases involving amounts under thirty-five dollars to
be entered on the small claims docket was given up in favor of a rule7 requiring the
clerk to place cases on the docket only when so requested by the plaintiff. The court
may issue attachments, which the Portland court is forbidden to do,8 but their use is
discouraged except in cases where the defendant's home address is unknown, but his
place of work is known, so that garnishment serves to give the court jurisdiction and
bring the claim to the defendant's attention. Speed is secured, most cases being heard
and determined within a week after their filing; and the cost is extremely low, the total
fees and costs amounting only to fifty-seven cents.9 The procedure is so simple that no
pleadings at all are required.

1 2 C. M. C. R. 39.

2 S Ibid. 51, insert. Note the increase of 81 per cent due largely to the reduced tariff of costs which went into effect
October 1, 1913.

3 4 Ibid. 43. 4 Report for 1916 not published at this writing. This figure was furnished by the clerk.
0 For 1913, see 2 C. M. C. R. 38; for 1914, 3 Ibid. 64; for 1916, 4 Ibid. 41.

6 Seeposr, Chapter XXV, A More Equal Administration of Justice, page 246.

7 The rule was changed in 1916. Cf. Conciliation Branch, Rule 1, as stated in 3C. M. C. R. 29 with the same rule as
stated in 4 Ibid. 17.

8 Oregon General Laws 0/1916, c. 327, §9.

8 The fees are five cents for filing, twenty-five cents for issuing summons, twenty cents for bailiff's copy and return
of service, two cents postage for service by mail. Cf. American Judicature Society, Bulletin VIII, page 14.

SMALL CLAIMS COURTS 51

This is clearly a court in which justice is not conducted according to the usual
procedural or evidential rules of law; but it is none the less dispensing a justice that
meets with universal approval. The number of cases disposed of is sufficient evidence
of the opinions entertained by parties. From the state's point of view, the procedure
permits a judge in two morning sessions a week to dispose of over five thousand cases
a year, which is at the rate of about one hundred each full day. The local public
opinion is reflected in an editorial of the Cleveland Press of January 16, 1915, which
praises the court and calls it " a movement towards justice in spite of lawyers," and
an indication of general public opinion is afforded by the fact that this editorial was
copied verbatim in the Salt Lake City Evening Telegram for January 22, 1915.

There has been some discussion as to whether this court ascertained and admin-
istered its justice in accordance with the rules of substantive law. Judge Levine has
been called a Haroun-al-Rashid,1 the inference being that he dispensed a sort of
Oriental justice without regard to rules of law. The court unquestionably exercises
wide equity powers — wider, perhaps, than can be supported by adjudicated cases. In
a suit for the conversion of shoes it has ordered the shoes returned instead of giv-
ing a judgment for damages. Where a defendant admitted that he owed four dollars
but had refused to pay it because the plaintiff had insulted his wife, and the plaintiff
denied that he personally had insulted her but admitted that one of his employees
had used improper language, the court ordered him to telephone to the wife apolo-
gizing for anything that had been said, which he gladly did, using the telephone in
the judge's room; he was then given a judgment for the four dollars.

Fundamentally, however, the court is a court of law. Its judges are trained judges,
who render their judgments by applying to the proved facts the rules of substantive
law. In the now famous mattress case,2 where a boarder set fire to the mattress by
smoking in bed, for which the landlady demanded twenty-five dollars, and the judge
by telephoning a department store ascertained that an identical mattress could be
had for eight dollars, which the boarder was quite willing to pay and for which judg-
ment was entered, — it would never occur to the judge to dismiss the case because
he personally approved of smoking in bed and considered landladies amply paid to
insure against such risks, or to give the landlady the desired twenty-five dollars on
the ground that he thoroughly disapproved of smoking in bed and desired to give
the community an object lesson.

§ 5
The Chicago small claims court is a branch of the Municipal Court, created by and
operating under rules of that court. It was brought into existence on February 26,
1916, the purpose being as much to secure to the state the advantage and economy

1 See Fuessle : The People's Court, 55 Collier's (July 3, 1915), 27.

2 See Moley: Justice through Common Sense, 33 The Survey (1914), 101.

52 THE REMEDIAL AGENCIES

of disposing of a vast number of cases quickly and at small overhead cost as to assist
poor persons. All money claims within the small claims jurisdiction
. are, therefore, automatically entered by the clerk on the small claims
docket. Costs were not lowered and remain the same for the small
claims branch as for the regular branches. Speed is secured, the case
being defaulted or tried on the return day. An early attempt to break down the plan
and secure delay by claiming jury trial was defeated by having two jury sessions in
readiness to hear such cases at once. The pleadings are simple, the plaintiff files an
informal statement of claim, but the defendant need only appear in court on the dav
set for hearing; it is unnecessary for him to file either an appearance or an answer.1
The outstanding feature of the court is the simplicity and despatch of the pro-
ceedings at the trial, with the added fact that this informal procedure has been suc-
cessfully applied in cases involving larger amounts of money than has been attempted
in any other small claims court. Technicalities are not countenanced. Attorneys are
not forbidden by law, but they seldom appear and their conduct of cases in the small
claims branch has been discouraged by resolution of the Chicago Bar Association.2
Like its prototypes, the court has been popular and is considered successful.3 An
expert in judicial administration calls it "undoubtedly the solution of one of the
most difficult questions which court reform has faced, to wit: the successful adjudica-
tion of small civil cases."4 The Chicago Legal Aid Society finds it of great assist-
ance.5 That this movement is of national interest is again evidenced by the fact that
when the establishment of such a court was first discussed, the plan received edi-
torial endorsement from the Boston Evening' Traveler,6 and that shortly thereafter
the editorial was reprinted in Los Angeles. The exact volume of the work is not yet
known, but its first year's business is estimated at more than 25,000 cases.7

§ 6
These four types of small claims courts have amply demonstrated that as to small
civil causes the defects of the traditional administration of justice can easily be elim-
inated. In these courts delay is entirely absent. Costs, either through reduction or
abolition, cease to forbid access to the courts. The fundamental difficultv of the ex-
pense of lawyers is avoided bv a simplicity of pleading and procedure in which there
is no need for any attorney. The accruing advantage of having the parties brought

1 There is no specific rule to this effect, but it is the practice followed. Cf. Olds: The Small Claims Court, 1 South-
western L. Rev. (1917) 100.

2 Chicago Bar Association Report for 1915, page 41 ; Ibid, for 1916, page 26.

3 1 Journal of the American Judicature Society, No. 5 (February, 1918), p. 145.

4 Herbert Harley, Secretary of the American Judicature Society, in an address to the Louisiana State Bar Associ-
ation on May 8, 1915, reprinted in pamphlet form under the title of "A Modern Experiment in Judicial Administra-
tion." See page 20.

6 11 Chicago L. A. R. 26. 6 Boston Evening Traveler for January 2, 1915.

7 1 Journal of the American Judicature Society, No. 2 (August, 1917), p. 27. In a more recent number (No. 5, p. 145)
in February, 1918, the estimate is increased tr> 35.000 cases, which is half of the entire civil business of the court.

SMALL CLAIMS COURTS 53

into direct contact with the judge, of making justice seem a more real thing to the

average man with its resultant beneficial effects on good citizenship

and loyalty can only be mentioned here. The small claims courts are

J . a mighty force in revising the present day opinion of the humbler
Small Claims , , , , . ,

classes as to law and courts.

■ (Miff" *?

There are three basic principles which must be adhered to by these
courts if their promised advantages are to be realized. First, the small claims court
must not be a distinct entity, as in Kansas, but a branch of the regular court organ-
ization, as in Cleveland and Chicago.2

Second, the proceedings must be conducted without lawyers. Only in this way can
the simplicity of procedure be maintained and the prohibitive expense of lawyers1
services be eliminated.3 On all the evidence there seems to be no danger in infor-
mality of procedure in these small cases. The only test which can be applied to deter-
mine whether parties feel aggrieved or believe that injustice has been done is to ex-
amine the number of appeals.4 Complete figures are lacking, but enough exist to be
illuminating. We may compare the appeals taken from the English County Courts,
the Kansas and Portland small claims courts, and the Municipal Court of the Dis-
trict of Columbia5 — all courts where informal procedure obtains — with the appeals
taken from two Massachusetts inferior courts where all the traditional safeguards of
common law pleadings, rules of procedure, rules of evidence, and lawyers are to be
found. Judgments rendered after an informal hearing seem comparatively immune
from appeals in clear contrast to those reached after a technical trial.

Court

Period

Cases

Appeals

Per Cent
Appealed

English County Courts6

1902

46,000

140

English County Courts'

1913

802,600

788

Kansas City Small Claims

Aug. 25, 1913, to Oct. 17,

Court8

1916

400

3.8

Portland Small Claims

May 24, 1915, to Nov. 6,

Court9

1916

1,828

Municipal Court, District of

March, 1909, to January,

Columbia10

1913

92,736

448

Boston Municipal Court11

Several years prior to 1913

—

10.0

Southern Essex District Court12

1912-14

700

209

30.0

1 See National Municipal Review for January, 1915, pages 455, 456; American Judicature Society, Bulletin VIII,
page 43; Fuessle: Making Americans by Justice, 55 Collier's (July 3, 1915), 27.

2 Cf. Harley: A Modern Experiment in Judicial Administration, page 41.

3 American Judicature Society, Bulletin VIII, pages 21, 22.

4 Cf. 1 Journal of the American Judicature Society, No. 5 (February, 1918), p. 145.

5 The Municipal Court of the District of Columbia has not been discussed in this chapter because it is not a small
claims court. But for the purposes of the test it is helpful because its procedure is entirely informal. Cf.Baer: Jus-
tice for the Small Man, 90 The Century (1915). 144.

6 Storey: Reform of Judicial Procedure, page 190.

7 Rosenbaum: Studies in English Civil Procedure, 2 The County Courts, p. 2. note 7. 8 See ante, page 45, note 3
9 See ante, page 47. 10 Baer : Justice for the Small Man, 90 The Century (1915), 144, 146.

11 Before 1913, an appeal on facts lay from the Boston Municipal Court to the Superior Court. Absolute figures are
unknown. The percentage figure is taken from the Boston Municipal Court Report for 1916, page 7.

12 Report No. 4 (March, 19151 of the Committee on Law and Procedure, Association of Justices of District, Police, and

54 THE REMEDIAL AGENCIES

The third principle is that while procedural law can be cast aside, rules of sub-
stantive law must be adhered to. This is the situation at present1 and in future ex-
tensions of the idea it cannot safely be departed from. In other words, while the small
claims courts clearly demonstrate that the doing of justice is not dependent on re-
ligious observance of our traditional rules of procedure and evidence, they do not at
all invalidate or weaken the principle that justice is best done when it is ascertained
and administered by a trained judge, according to the rules of substantive law.

As against the manifest advantages of this sort of court, only two objections have
been urged. The first is that they will encourage litigation. They will increase liti-
gation, for they make possible justice in cases where justice hitherto has not been done
and they open the courts to persons who hitherto have found that the courts were
not for them. To such an objection, Dean Pound makes this short answer:2

"When better provision for petty litigation is urged, many repeat the stock say-
ing that litigation ought to be discouraged. It will not do to say to the popula-
tion of modern cities that the practical cutting off of all petty litigation, by which
theoretically the rights of the average men are to be maintained, is a good thing
because litigation ought to be discouraged."

The other objection is that collection agencies will flood the courts with their
business.3 Judge Levine of Cleveland answers this by saying that collection agencies
were not deterred by the former procedure and costs. In fact, it played into their
hands by giving them, in addition to the judgment, a large bill of costs with which
they could further harass their debtors. The result of the small claims court is to
save a debtor anywhere from two to ten dollars. If any undesirable tendency mani-
fests itself, it can readily be controlled by requiring the original claimants, and not
their assignees, to sign the statement of claim and to present the case to the judge in
person.4

How far can these courts be extended? There is no reason why they should not
be created immediately in every large city as an indispensable department of a mod-
ern municipal court. Minneapolis secured such a court on April 17, 1917.5 Judge
Wheeler, who made an investigation for the Philadelphia Municipal Court, strongly
recommends the addition of a small claims branch.6 Legislation toward this end has

Municipal Courts of Massachusetts. Some latitude must be allowed in these figures, for they represent appeals after
trials, whereas the other figures give the proportion of appeals out of all entries. But these figures as they stand may
be compared with the English County Court record of 32,000 judgments made by judges in 1913 with only 167 appeals
and 621 motions for new trials.

'This opinion has been expressed in foregoing pages. It is confirmed in American Judicature Society, Bullet in
VIII, page 36 ; but see Ibid., pages 18, 19.

5 Pound: Administration of Justice in the Modern City, 26 Harvard L. Rev. 320.

3 See American Judicature Society, Bulletin VIII, page 41 ; Philadelphia Municipal Court R. for 1915, page 40.

4 This has been done in Portland by statute. Oregon General Laws of 1915, c. 327, § 7. In Cleveland the judges have,
as occasion required, insisted that the creditor himself appear.

6 Minnesota Session Laws 0/1917, c. 263. Costs are abolished and attorneys are excluded, § 3. This court is discussed
in 1 Minnesota Law Review, 107; 2 Journal of the American Judicature Society, No. 1, p. 16.

6 Philadelphia Municipal Court R. for 1915, page S3; see also page 19: Ibid, for 1916, page 11.

SMALL CLAIMS COURTS 55

been introduced in the Connecticut legislature but not yet acted on.1 The Rochester
Legal Aid Bureau expresses the need for some such court.2 The modern municipal
courts of Milwaukee, Pittsburgh, Buffalo, and Atlanta, under their rule-making
powers, can establish small claims branches at short notice.3 The New York Munici-
pal Court with its 1917 rules for conciliation and arbitration has substantially estab-
lished a small claims court.4 A movement for such a court is clearly under way in
Boston,5 in Newark, and in Jersey City.6 There is every reason to predict that the
immediate future will see small claims courts established in all of the larger cities of
the United States.7 If this comes about, it will mean an enormous step forward toward
freedom and equality of justice. Remembering that small claims courts are able to
handle nearly all wage claims and miscellaneous small debt matters which together
form a substantial part of the litigation of the poor, it is not too much to say that
with a wide territorial expansion, these courts are capable of reducing by one quar-
ter the existing denial of justice.

Not all claims of the poor, even in the fields of wages and miscellaneous debts, are
below twenty or even thirty-five dollars. The question of how far the monetary limit
of the small claims jurisdiction can be extended is not easy to answer. If claims up
to two or five hundred dollars can be adjudicated properly without formal procedure
and without attorneys, the serviceability of these courts to the poor will be propor-
tionately increased. The precise question is not as to raising the jurisdiction of the
whole court, but as to fixing the point at which it ceases to be practicable and wise
to transfer cases to a special department where the proceedings are informal.

The Kansas limit of $20 was increased in Cleveland to $35. Chicago, beginning
at $35, very quickly raised its jurisdiction to $50, then to $100, and finally to $200.8
It is superficially said that informal procedure cannot be extended to larger claims
because they are more complicated. Every lawyer knows that in contract and debt
actions the size of the claim has little relation to the complexity of the issues or the
difficulty of proof.9 It is easier to prove a five thousand dollar claim on a note than a
five dollar claim for wages where there is a defence of improper workmanship. To this
problem no deductive answer can be made. The only sane course to pursue is grad-
ually to mark the limit up, and to stop when signs appear that the plan is not work-
able. The answer must be inductive and therefore must rest on future experience.10

1 House Bill 443 (1915). filed by Thomas Hewes, attorney for the Hartford Legal Aid Committee.

2 4 United Charities of Rochester R. 13. 3 American Judicature Society, Bulletin VIII, page 44.

4 This is discussed in detail in Chapter IX, Conciliation, and Chapter X, Arbitration, pages 63 and 71.

5 See House Bill No. 590, filed in the Massachusetts Legislature by Richard W. Hale in 1918.

6 1 Journal of the American Judicature Society, No. 5 (February, 1918), p. 157.
' Ibid., p. 149 ; 42 American Bar Ass'n R. (1917) 377.

8 See 8 & 9 Chicago Municipal Court Reports (1913-15), 129 ; Chicago Bar Association Report for 1917, page 31.

9 And see Parry: The Law and the Poor, page 145 ; Docket (West Publishing Co.) for 1915, page 1523.

10 This is the conclusion arrived at by Dean Wigmore, who has addressed himself to the precise question. See Amer-
ican Judicature Society, Bulletin VIII, pages 20 et seq.

56 THE REMEDIAL AGENCIES

§ 7

The essential features of a small claims court are extremely low costs or none at
all, no formal pleadings, no lawyers, and the direct examination of parties and wit-

;; . „ nesses without formality by a trained judge who knows and applies

, . . , the substantive law. There are, in addition, five collateral functions

' . . which these courts ought to undertake. Varying combinations of

; , the five are found in different courts. None as yet are empowered

to perform them all.

The first is to provide some official who shall assist parties. While the lawyer is
largely rendered unnecessary, certain bits of his traditional functions remain and
must be performed by some one. It is highly desirable that all cases should not at
once be docketed for trial. In many, a letter to the defendant will secure the desired
result, and in such cases the court ought not to be bothered or the parties caused
loss of time in attendance. The statement of claim, however simple, must be filled out
under the supervision of a person who knows the law and procedure. Parties need
advice as to their rights. A successful litigant needs instructions as to collecting his
judgment. There will be, even in small disputes, cases presenting complicated states
of fact or raising intricate questions of law wherein the judge needs the assistance of
counsel and the parties require representation if justice is to be done. There must be
some official to sort such cases and, especially where one side has retained counsel,1 to
advise consulting a lawyer or the legal aid society. There is always a danger that per-
sons (as has been the case with injured workmen and industrial accident commissions)
will rely too much on the court and expect from it more protection and safeguarding
of rights or defences than it can legally, or in the nature of things, give.

In Kansas the judge affords this assistance and in Portland the clerk. In Cleveland
more has been done than elsewhere through the creation of a special department of
the clerk's office, which has already been described. In one case where the defendant had
appealed, raising a jurisdictional question, the clerk prepared for the plaintiff a brief
on the point and instructed him as to its filing. This illustrates the necessity of main-
taining a watch over the small cases in order that when an attorney does become
necessary, the party may be so advised. Under a proper coordination of work the legal
aid society would be called in, or counsel assigned, in all such cases. Courts are more
and more undertaking such work,2 and unless rights and defences are to be sacrificed in
a margin of cases, it is essential.

A second power which a small claims court should have is that of ordering the
judgment paid by instalments. This is not only a fairness to the defendant who under
modern conditions of the weekly wage seldom has enough at any one time to pay a

1 See 8 Cleveland L. A. R. 6.

2 In addition to Kansas, Portland, and Cleveland, see Rule 13 of the Cincinnati Municipal Court ; Philadelphia
Municipal Court Report for 1915, page xi.

SMALL CLAIMS COURTS 57

judgment in full, but also it facilitates the court's disposition of cases. A defendant

often denies a debt simply because he cannot pay it. If he realizes

" that he is not to be harassed, he is more willing to confess judgment

^ , and try to obtain suitable terms. This power to order and accept

** instalment payments is granted by law to the Kansas, Portland,

and Minneapolis courts.1 In Cleveland it is done de facto.

Such a power might be attacked on constitutional grounds as impairing the obli-
gation of contract, but it would probably be upheld because, under our law forbid-
ding imprisonment for debt and giving liberal exemptions, it is in fact of great benefit
to creditors. The present proceeding of examination after judgment or poor debtor
process is designed only to discover existing property. The instalment payment order
is a means whereby a judgment can be paid out of future earnings. It is only a slight
extension of the Massachusetts equitable proceeding, permitted by statute2 after a
judgment founded on necessaries, whereby a judge may order a defendant to pay so
much a week, and which has been held constitutional.3 This plan is used in the Eng-
lish County Courts; in 1913 about £2,700,000 was so collected and paid over to
suitors.4 The sweeping provisions of the Soldiers' and Sailors' Civil Relief Act per-
mit every court in entering or staying judgment against a man in military service to
order that the judgment shall be paid in instalments.5

The small claims courts statutes do not specifically state what is to happen in case
the debtor fails to pay the ordered instalments. The procedure should be, as in Eng-
land and Massachusetts, for the issuance of a summons, promptly returnable, at which
time the enquiry is not what the debtor has, but whether he has had the funds out
of which to pay the ordered amount. If it appears that he has had money and has
refused to apply it in payment, he is amenable to such orders as the court deems fair,
for he then stands not only in default but in contempt of a court order.

A third function which every small claims court ought to exercise, and one which

will speedily be thrust upon it if it employs the instalment plan to any extent, is that

„„„,.. of acting as trustee for a debtor who owes numerous creditors. It is

o. 1 he Func-

_ obviously an injustice for the court to lend its aid to one creditor, to

** the exclusion of others who have been more lenient and refrained from

bringing suit, thereby causing a clear preference. It would automati-
cally force all creditors to bring suit, and their proceedings, coupled with attachment
and garnishment which they could legally use, would in turn make it impossible for
the debtor to pay the ordered instalments. The court would be robbed of much of its
power for good; instead of helping all parties, it would cause costs to all and bring
relief to none. The needed procedure is like informal bankruptcy. In essence, it per-

1 Kansas Session Laws of 1913, c. 170, § 7; Oregon General Laws of 1915, c. 327, § 10; Minnesota Session Laws of
1917, c. 263, §§ 4, 5.

2 Mass. Revised Laws of 1902, c. 168, §§ 80-86. s Brown's Case, 178 Mass. (1899) 498.

1 Rosenbaum : Studies in English Civil Procedure, 2 The County Courts, p. 10, note 18.
6 Public Act No. 103 of the 65th Congress, § 204.

58 THE REMEDIAL AGENCIES

mits a debtor to come into court, disclose his assets, state his creditors, and then,
after notice and hearing, to have the court fix the proportion of his income which is
to be set aside for creditors, and to issue an order protecting him from garnishment
and attachment.

The small man does not owe many creditors or much money. For such matters bank-
ruptcy is too expensive and cumbersome, and where a debtor desires to pay, the law
ouo-ht not to force an election between canceling all debts and perpetual harassing.
One creditor of a man who owes five creditors one or two hundred dollars may, by
garnishment, tie up all his wages or cause him to be discharged, so that he has diffi-
culty in supporting his family and little opportunity of meeting his obligations.1

The trusteeship suggested has never been carefully tried in America. In Kansas
the court can protect the debtor against further proceedings by the judgment cred-
itor,2 but not as against other creditors. In Cleveland the enterprising clerk's office
established a trustee department which succeeded at first,3 but failed, as it was doomed
to fail, because the court had no power to restrain creditors or to protect the debtor.
The legal aid societies have had as much success with the plan as their limited au-
thority permitted,4 particularly in Nashville, where the Legal Aid Bureau5 through
its close affiliation with the Commercial Club has a quasi-legal hold over the creditors
and so can afford a genuine protection to the debtor, which is unquestionably the sine
qua non of any such plan. The necessity for the establishment of such a court depart-
ment has been repeatedly urged in various cities,6 and a law giving such power to the
Columbus Municipal Court was passed,7 but nothing has as yet been accomplished.

In England, under the name of "administration orders," the plan of having the
County Court act as trustee for a small debtor is in very general use. The plan differs
slightly in that it is a part of the bankruptcy law, so that the courts may order par-
tial payment in full satisfaction by way of composition or dividend. This would be
both unnecessary and undesirable in America. In 1913 these courts made 5426 admin-
istration orders, of which 2884 were for payment in full. The average total indebted-
ness was ascertained to be £25, 16s., and the average creditor's claim to be £2, 7*.
The court may refuse to issue a protecting order if the petition for the order or the
incurring of the debts appears fraudulent, but in only 11 per cent of the total appli-
cations has a refusal been necessary. The effectiveness of the method has been vitiated
in part by the excessive court costs which attend these orders. There seems to be no

1 Cf. American Judicature Society, Bulletin VIII, page 15.

2 Edholm : The Small Debtors' Court, 22 Case and Comment, 30. 3 3 Cleveland Municipal Court R. 55.

4 A great deal of this work has been done in Chicago and Duluth. In both instances, the plan has had a measure of
success only because of the moral hold which the legal aid society had on the creditors. See also 1 Milwaukee
L. A. R. 10.

6 Nashville Legal Aid Bureau Report for 1915-16, page 10; Commercial Club Tattler for July, 1916, page 29; Proceed-
ings of the Fourth Conference of Legal Aid Societies, pages 111, 112.

8 See 6 Cleveland L. A. R.8; 7 Ibid. 16; 9 Ibid. 12 ; 6 Cincinnati L. A. R. 9; Proceedings of the First Conference of
Legal Aid Societies, page 43. Cf. Rochester L. A. Leaflet for 1915, page 3.

7 1 Supplement to Page and Adams' Ohio General Code, §§ 1658-54 c (page 592). After its protecting order has been
issued, the court may stop creditors' suits by writ of prohibition.

SMALL CLAIMS COURTS 59

doubt that if this difficulty were removed, the plan, under proper supervision, would
be an instrument of great service to creditors and debtors alike.1

A fourth power which could well be added to the small claims courts is a discre-
tionary control over ejectment proceedings. Any authority to exercise discretion to
forbid the ejection of tenants either after expiration of the tenancy by
notice or for non-payment of rent is unknown in the United States.2
p Our common law gives the landlord certain rights, and these the courts

must enforce regardless of the circumstances of the case. A control over
the right to occupy or eject from premises is as necessary as our home-
stead laws and our provisions exempting certain property from attachment and execu-
tion. Both are based on the theory that at a certain point the interest of the state
supervenes and rises superior to the rights of the creditor.

The vast majority of the poorer people living in cities possess their homes with-
out written leases, so that in law they are merely tenants at will. They are liable to
eviction on summary notice whether they have paid their rent or not. Homes are of
social as well as individual importance, but millions of homes are at the mercy of a
law which has altered but little from feudal days when a tenant at will was only one
grade better than a trespasser. Admittedly an economic problem is involved. Land-
lords are entitled to their just dues, but a more even balancing of rights and inter-
ests is desirable and this may best be secured by entrusting to the courts a discre-
tionary control over ejectments. In England, if the judge finds the landlord entitled
to use and occupancy, he has power, after considering the circumstances, to make an
order for "possession in a week" or even "in six weeks." This discretionary power is
vested in the court by statute.3

The final power which every small claims court should in unmistakable language
be given is the authority to endeavor to conciliate the parties and to assist them in
reaching a satisfactory solution or adjustment by agreement. This
matter of conciliation has such great possibilities and is so little
understood that it deserves a careful presentation and consideration which is at-
tempted in the next chapter.

1 The English system is fully presented in Rosenbaum: Studies in English Civil Procedure, 2 The County Courts,
47-61. Cf. Parry: The Laio and the Poor, pages 120-124.

2 Since this was written, a very important beginning has been made. As to cases in which soldiers and sailors and
their dependents are involved, this power has now virtually been given to every court in the United States by
the Soldiers' and Sailors' Civil Relief Act. Public Act No. 103 of the 66th Congress, § 300. For a commentary see
12 Illinois L. Rev. (February, 1918) 449, 459.

3 Rosenbaum: op. tit., pages 46, 47.

Chapter IX
CONCILIATION

It is the duty of a good judge to remove causes of litigation. . . .
(1628.) 2 Institutes, 306.1

The conciliation system marks a new epoch in the administration
of justice in this State. . . . (1917.) Statement of the Justices of the
New York Municipal Court. *

THE idea of conciliation is not new, but it is to-day so little understood that
attempts to employ it as a method of settling litigation are very generally viewed
by the bench and bar with suspicion and distrust, if not hostility. It therefore be-
comes necessary to state what conciliation means and to explain that in its true form
it is neither revolutionary nor destructive of cherished institutions.

By reason of the fact that the Cleveland small claims court was given the name of

"conciliation court" there is a mistaken idea abroad that conciliation is a particular

. court or that it pertains only to small matters.3 Conciliation is a method

J or principle for settling litigation, and as such can be used in every court

and is applicable to all civil cases, and to certain types of criminal cases.

Conciliation is the process used by two lawyers who succeed in adjusting a dispute
between their clients. The duty to conciliate in proper cases is enjoined by the Canons
of Ethics.4 Judicial conciliation means nothing more than giving to the court power
to follow the advice of Abraham Lincoln, which has been deemed proper enough to
be used as a preface to the American Bar Association Canons of Ethics:5

"Discourage litigation. Persuade your neighbors to compromise whenever you
can. Point out to them how the nominal winner is often the real loser — in fees,
expenses, and waste of time. As a peacemaker the lawyer has a superior oppor-
tunity of being a good man."

There is no set form for judicial conciliation. It is an entirely voluntary affair, an
informal proceeding by which the two disputants are enabled to discuss the issue
before a trained and impartial third person having the dignity of judicial office, who
explains to them the rules of law applicable, informs them of the uncertainties and
expense of litigation, tries to arouse their friendly feelings and suppress their fight-
ing instincts, and if an adjustment agreeable to the parties is reached, draws up a

1 The same maxim, in a more extended version, is contained in 4 Coke, 16 b; 5 Coke, 31 a; Bart. Max. 191.

2 When the new conciliation rules of the Municipal Court of the City of New York were promulgated, a statement,
prepared by Justice Spiegelberg, was issued to the press. See page 1.

3 Cf. American Judicature Society, Bulletin VIII, pages 28, 29; 2 Journal of the American Judicature Society, No. 1
p. 3.

4 See Canon 8, 33 Am. Bar Ass'n R. (1908) 678; see also Sharswood : Legal Ethics (5th ed. 1884), page 109.
6 33 A.B. A.R. 574.

CONCILIATION 61

proper agreement, has it executed, and gives it the sanction of a judgment. All of
this is done without prejudice to the parties if adjustment fails and a trial is ren-
dered necessary.1

§2

In the reform wave of 1846 to 1852, which accomplished certain improvements in
the administration of justice, provisions respecting conciliation were inserted in six
of the new constitutions which were adopted during that period.2 The New
u York provision read:

"Tribunals of conciliation may be established, with such powers and duties as
may be prescribed by law, but such tribunals shall have no power to render
judgment to be obligatory on the parties, except they voluntarily submit their
matters in difference and agree to abide the judgment, or assent thereto, in the
presence of such tribunal, in such cases as shall be prescribed by law."

A bill to carry this clause into effect was prepared, but failed of passage. The
constitutional provision became a dead letter and was eliminated in 1894.3 In the
other jurisdictions the plan met with like failure, for the time was not ripe. Mean-
while conciliation as a means of settling collective disputes was slowly coming to the
fore in nearly all European countries and in America, and so clearly demonstrated its
superiority over the litigious method of injunction, suits for damages, and the like
that to-day, in the event of a strike or lockout, the first thought of the parties and
of the general public is of the possibility of employing conciliation.4

Inasmuch as the use of conciliation by American courts to settle individual dis-
putes is of extremely recent origin, it is necessary to examine briefly the plan of con-
ciliation as employed in Europe in order to gain some concrete idea of what it is and
how far it is successful.

§3

In Norway and Denmark courts of conciliation have existed since 1795.5 The court

has jurisdiction of every civil proceeding, and before any lawsuit can be instituted

. the dispute must be submitted to the local conciliation commission,

which consists of two members. Unless a suitor can present a certificate

" that this condition precedent of an attempt at judicial conciliation has

been complied with, the law courts will refuse to hear the case. The costs are seventy-

1 Charles A. Boston gives substantially the same definition in 73 Ann. Am. Ac. Pol. & Soc. Science, 112.

2 New York Const, of 1846, Art. VI, § 23; Ohio Const, of 1851, Art. IV, § 19; Indiana Const, of 1851, Art. VII, § 19; Mich-
igan Const, of 1850, Art. VI, § 23; Wisconsin Const, of 1848, Art. VII, § 16 ; California Const, of 1849, Art. VI, § 13.

3 See New York Const, of 1894, Art. VI ; 73 Ann. Am. Ac. Pol. & Soc. Science, 111.

* The use of conciliation in the United States, Canada, Great Britain, and in Europe is fully set forth in United
States Bureau of Labor Bulletin No. 98 (1912). The serviceability of the method in the United States is well known.
For the English experience see pages 123, 137.
5 2 Journal of the American Judicature Society, No. 1 (June, 1918), pp. 5, 9.

62 THE REMEDIAL AGENCIES

five cents, the hearings are in secret in order that no disclosures may prejudice sub-
sequent litigation, and lawyers are rigidly excluded. Proceedings are most informal,
the disputants tell their own stories, and the conciliation commissioners endeavor to
guide them to a fair adjustment.

As conciliation has no validity except what it obtains from the voluntary consent of
the litigants themselves, it would be wholly worthless unless it worked. But it appears
that in Norway 75 per cent and in Denmark 90 per cent of all litigation is peaceably
adjusted through judicial conciliation.1 Precise figures for the Norwegian courts in
1888 are known. The total number of civil cases brought was 103,969, of which 2300
were dismissed by the Conciliation Commissioners. Of the remaining 101,669 con-
ciliation produced adjustments agreeable to the litigants in 81,015 cases, and in addi-
tion 7886 were submitted to the Conciliation Court by the parties for decision.
Thus only 12,768 cases went to the regular courts for formal litigation, this informal
preliminary tribunal of conciliation having disposed of 87 per cent of all matters to
the satisfaction of both parties. That the method of conciliation works no injustice
is well attested by the fact that throughout a period of over a century during which
constitutions have been liberalized and systems of law recast, the courts of concilia-
tion have not only been left intact, but have steadily been strengthened and per-
fected.2

In the industrial courts of France, Switzerland, and Germany which have juris-
diction over disputes between employers and employees, conciliation plays a leading
part. These courts, whose history began in France in 1806,3 had no counterpart in
American judicial institutions, with the exception of an isolated attempt made in
Pennsylvania in 1883, which immediately failed,4 until the creation of the small
claims courts. The essential features of the system are the same as those already
described. These courts accomplish their great volume of work by conciliation and
not by trial and judgment.5 Conciliation is frankly their primary object.6 The statis-
tics again show that conciliation fits in with human nature and that, when rightly
conducted, it is very successful.

Settled

Court

Tear

by Conciliation

by Judgment

France 7

1905

17,731

5,041

France

1906

19.064

6,637

Geneva "

1908

793

139

Geneva

1909

914

222

1 American Judicature Society, Bulletin VIII, page 9. 2 Ibid.

8 United States Bureau of Labor Bulletin No. 98, p. 292.

* Ibid., p. 290. B Ibid., p. 280. 6 Ibid., p. 278. ' Ibid., p. 437. 8 Ibid,, p. 452.

CONCILIATION 63

§4

The legal aid societies have always recognized the possibilities of conciliation and
have steadily employed it.1 In the words of the greatest figure in all legal aid work:2

Conciliation "The Legal Aid Society brings antagonists together, inculcates
T // TJ 7/7 the spirit of compromise and adjustment, under authority of the
searching legal mind, expert in resource, linked with reserve com-
itates pulsory powers ; yet in the persuasive and kindly attitude of a lover
of humanity unselfishly seeking to render unto every one his own."

Judicial conciliation in the United States begins its history with the establish-
ment of the Cleveland small claims court in 1913. The rules merely say that the judge
shall endeavor to effect an amicable adjustment,3 and leave the rest to his tact, dis-
cretion, and patience. In 1914 judgments were rendered in 1879 cases and 794 were
settled by the parties;4 in 1915 the judgments were 2754 and the settlements 634.5
In this court, if conciliation fails, the court may proceed to hear the case and render
judgment forthwith.6

In 1917 a small claims branch was added to the Minneapolis Municipal Court
and the right to attempt conciliation conferred on the court.7 It is provided that a
person may bring a matter before the conciliation judge either by going directly to
the judge or by filing a claim with the clerk. The defendant may be summoned
orally, or by telephone, or by mail, or by the usual summons. There are no costs and
no attorneys. At the hearing, if a settlement is reached, it becomes a judgment when
countersigned by the judge. If conciliation fails, the court must dismiss the case if
the claim or counter-claim exceeds fifty dollars ; otherwise it may proceed to a hear-
ing at once and render judgment.8

In these courts it is difficult, if not impossible, to determine where their function
as a conciliation tribunal ends and their work as a small claims court begins. Fortu-
nately it is not necessary. In the field of small claims the two merge and become
indistinguishable because both are based on precisely the same informal procedure.

In April, 1917, the justices of the Municipal Court of the City of New York,
acting under authority of the new municipal court act,9 promulgated a series of rules

1 McCook: The Judicial Aspect of the Works of the Legal Aid Society, 5 N. Y. Legal Aid Review, No. 3, p. 17;
6 Ibid., No. 1, p. 3; 3 Cleveland L. A. R. 7 ; Proceedings of Third Conference of Legal Aid Societies, page 25; Ibid.,
Fourth Conference, page 128.

2 Arthur v. Briesen, long president of the New York Legal Aid Society. This quotation is taken from the program
of a concert given on May 2, 1908, for the Society's benefit.

3 Conciliation Branch, Rule 3.

4 3 Cleveland Municipal Court R. 56. 6 4 Ibid. 43.

6 Conciliation Branch, Rule 4.

7 Minnesota Session Laws o_f 1917, c. 263.

8 This court is discussed by Dean Vance of the University of Minnesota Law School in 1 Minnesota L. Rev. No. 2
(February, 1917), p. 107.

* Lauer: Municipal Court Code in the City of Neiv York (1916) ; see Section 6, subdivision 6, and Section 8, subdivi-
sion 5, of the Code. See also Justice Lauer's article in 1 Journal of the American Judicature Society, No. 5 (Febru-
ary, 1918), p. 153.

64 THE REMEDIAL AGENCIES

establishing and regulating conciliation.1 The important points in these rules are
that attorneys shall play a part in the proceedings only in the court's discretion,
there are no costs, service is by mail, and the court cannot render a judgment in any
case. This last is overcautious; if the disputants have come to an agreement under
circumstances which preclude coercion and overreaching, there is no reason why it
should not be made a judgment and thereby given legal validity. The framers of the
rules doubtless feared that any compulsion would jeopardize the plan. Compulsion
exercised to force a settlement is, of course, not conciliation at all, but unless an
agreement can be enforced, the door is left open for fraud by refusal to abide by the
adjustment, so that the proceeding merely results in loss of time and disappoint-
ment. This detail should not be adopted elsewhere. It will do little mischief in New
York because a parallel system of rules for arbitration was concurrently provided
by the justices, under which a binding award may be secured.2 The distinguishing
feature of the New York conciliation rules is that no monetary limit is fixed. There-
fore any claim under one thousand dollars, the maximum jurisdiction of the Munici-
pal Court, may be submitted for conciliation. This should provide experience from
which the conciliation plan may be further developed as a method of settling large
as well as small causes.

In fields other than small claims there have been slight experiments with concili-
ation, but all informal in nature and without any clear legal sanction. In matters
of divorce and domestic difficulties there are great possibilities for conciliation3
with a view to reconciliation, and progress in this direction is quietly being made in
the domestic relations courts of Philadelphia, Cincinnati, Cleveland, Kansas City,
and elsewhere.4 Industrial Accident Commissions have begun to employ it as a pre-
liminary to a formal hearing. In Massachusetts, for example, in many cases the par-
ties request a "conference" — a thing not to be found in the statute — at which they
appear before a single member of the Industrial Accident Board, talk the matter over
informally, have the benefit of his observation, and often come to an amicable under-
standing which is then validated as a binding agreement.5

Judge Levine, who was largely responsible for the development of conciliation in
the Cleveland Municipal Court, has carried his faith in its efficacy to the Common
Pleas Court, of which he is now a judge, and has used it more widely than any one
else. Several notable triumphs stand to his credit. In a suit for repairs to a large
"butterfly valve" with a defence of non-compliance with specifications, the type of
case which bristles with the most technical engineering points, the parties arrived

1 These rules are printed in New York Law Journal for April 26, 1917, and in 1 Journal of the American Judicature
Society, No. 2, p. 13.

2 This is discussed in the next chapter, page 71.

3 The National Desertion Bureau of New York has had great success with conciliation. See Family Desertion,
Report of the Committee on Desertion (1912), page 16. For further conciliation in general see Parry : The Law and
the Poor, pages 127, 187, 298.

' This particular development is considered more in detail in Chapter XI, Domestic Relations Courts, § 4, page 80.
6 This is later mentioned in Chapter XII, Administrative Tribunals, page 88.

CONCILIATION 65

armed with their lawyers, models, and experts. A trial in usual course would have
consumed about ten days, and each side was paying about two hundred dollars a day
in expenses. At the close of the first day's trial, the Judge called the parties into his
room, reduced the issue, as he saw it, to its simplest terms, and asked if they were
unable to come to any agreement. They asked for time, and returned the next morn-
ing having come to an agreement, and prepared to continue instead of break off their
business relations. The model of the valve was given to the Judge as an expression
of appreciation.

In a delicate case of slander where honor, not damages, was the issue, where one
might expect conciliation to fail, the Judge, after conference with the plantifF and
defendant, discovered that at bottom the difficulty was a misunderstanding. His sug-
gestion that the defendant state in writing that he had never believed the plaintiff
dishonest and that the plaintiff dismiss her case met with cordial approval by the
parties and was done. The following statement to the jury is almost unparalleled in
legal annals:1

"Gentlemen of the Jury, in your absence I have conferred with both sides to this
lawsuit. After hearing the evidence so far given, and after speaking to both sides,
I felt it was the duty of the Court, in view of its conviction, to be of some sub-
stantial assistance to both sides, if possible. I was convinced that I was dealing
with good people, who had a serious misunderstanding. I saw the futile loss, part
of which you have heard; I saw the burden which each side would have to bear,
by way of waste of time and court expenses, and after speaking to both plaintiff
and defendant, I was convinced that neither bore any real feelings towards the
other, but that it was purely a case of an unfortunate, serious misunderstanding.

"The defendant in this case signed the following statement . . .

"It has been agreed between the parties to call this legal strife to an end. . . .
I hope that the end of this lawsuit upon which you both agree by common con-
sent, will be the end of all controversy or feeling between you, for you have no
cause to feel anything but the deepest friendship for one another.

" Gentlemen of the Jury, I hope this meets with your approval. {Applause by
the Jury.)"

The traditionally trained judge or lawyer unconsciously feels a certain distrust and
aversion for such a proceeding. This is an illustration of the tendency to make law a
thing apart, an end unto itself, forgetting that only as it squares with life and aids
human beings has it any reason for existence. It is difficult to see how exception can
properly be taken to a proceeding which has satisfied the litigants, saved them un-
necessary expense, saved the state nearly a thousand dollars, enabled other cases to
be reached sooner, and tended to heal rather than inflame a misunderstanding be-
tween honest people. Justice has various definitions, but this runs counter to none.

1 From the stenographic record in Payne v. Henry, No. 146,594, Cuyahoga County, Court of Common Pleas.

66 THE REMEDIAL AGENCIES

§ 5

The significance of judicial conciliation for this study is that, of its very nature, it is
a prompt proceeding, calling for minimum or no court costs,1 and involving no expense
to the parties, not even for attorneys' fees. The attorney is eliminated
° J because conciliation depends for its effect on bringing the parties to-
/ . gether, on smoothing out irrelevancies by confrontation, and then pro-
ceeding to a direct, business-like, personal adjustment of the real issue.
It is the almost universal experience that conciliation is best worked without lawyers.2
It results that as conciliation automatically obviates the three difficulties in the
traditional administration of justice, it is capable of reducing denial of justice to the
poor exactly in proportion as it makes headway in being used by the courts. When
a poor person is able to go before a judge, have the defendant summoned at once or in
a few days, obtain an informal hearing out of which an amicable adjustment becomes
possible, and have a judgment rendered thereon, he has indeed partaken of free and
equal justice.

§ 6
The most perplexing problem raised by conciliation is whether the court which
attempts conciliation should have authority, if it fails, to proceed to a hearing and

judgment. In New York the court cannot, in Cleveland it can, and in
... Minneapolis it depends on the amount involved. In Norway the judge

can render a judgment only if both parties have consented; in the in-
dustrial courts the hearing for judgment is before a larger body, but of which the
conciliation officials are members.

There is a fear that if the same judge exercises both functions, it may result in
forced compromises. When the case is one which is to be tried according to strict rules
of evidence there may be a danger in permitting a judge to hear the stories with the
fullness in which they are told at the conciliation stage. Yet this is no more than a
judge, sitting without a jury, does every day. He passes on the admissibility of evidence
which he actually hears and then determines his finding according to a state of facts
from which such evidence in law is excluded. In small claims, where the trial itself is
under informal procedure, it is difficult to see why the judge should not be empowered
to pass judgment. It may be said that a judge would be biased or piqued by the re-
fusal of one party to accept his suggestion, but if judges were not able to rise above
such personal considerations, they would equally take offence at every exception and
a thousand things that occur in any hard fought trial. If two hearings by two tri-

1 The industrial courts in Europe have most successfully eliminated delay and expense. United States Labor Bulle-
tin No. 98, p. 281.

2 It has already been noted that they are excluded in Norway, Denmark, and Minneapolis: that in fact they sel-
dom appear in Cleveland ; that in New York their appearance is only by permission. In the European industrial courts
they rarely appear. United States Bureau of Labor Bulletin No. 98, pp. 278, 320. See also, American Judicature Soci-
ety, Bulletin VI, page 60.

CONCILIATION 67

bunals are to be required, much delay and waste of judicial time will be caused. The
answer can only be worked out empirically. It will be safer to attempt it first in the
simpler matters and then gradually to experiment with extensions. The line of cleav-
age between the two functions which cannot safely be departed from is that as con-
ciliator the judge may suggest any solution likely to be acceptable to the parties, but
as judge he must abide by the rules of substantive law.

How far conciliation may be counted on as a solution for the existing denial of
justice is doubtful. As with the small claims courts, there is evidence of its general
popularity.1 The proposed New York Code planned to make provision for it.2 The
American Judicature Society in its draft for a model State- Wide Judicature Act in-
cludes a system of conciliation by local magistrates.3 The New York State Bar Asso-
ciation in 1916 adopted resolutions calling for the appointment of a Commissioner
in Conciliation.4 A bill has been introduced in Wisconsin providing for the establish-
ment of conciliation branches in the Civil Court of Milwaukee County.5

Despite these promises of development, it is well not to put too much reliance on
conciliation as of great immediate value in securing more adequately the rights of
the poor. Conciliation is compounded of common sense and psychology. The Ameri-
can people may take slowly to the idea. Judges are likely to be distrustful of the plan
and of their ability to carry it through. It is a delicate adjustment, depending much
on custom, drawing a large part of its moral suasion from a public opinion that parties
ought to try to conciliate, and calling for judges experienced in its use. Such things
can come but slowly.

1 See editorials in the Cleveland Press for February 4, 1915, and Duluth Evening Herald for November 18, 1916.

2 1 Report of the Board of Statutory Consolidation (1915), 9, 25, 228.

3 American Judicature Society, Bulletin VII- A, pages 57, 72.

4 New York State Bar Ass'n R. for 1916, pages 291, 309; 3 Am. Bar Ass'n Journal, No. 1, p. 35. See also 1 Journal of the
American Judicature Society, No. 5 (February, 1918), p. 157.

5 1 Journal of the American Judicature Society, No. 1, p. 25.

Chapter X
ARBITRATION

It would be better for the people if more of their controversies
should be settled by arbitration, and justice would be quite as likely
to be done as when administered by the more formal methods of
litigation in the courts. Curtis v. Gokay, 68 N. Y. 300, 305.

ARBITRATION, as a method of settling disputes, is more generally and better
t known than conciliation. It stands midway between conciliation and court lit-
igation. Like the former, it is a method that can be used only by consent, and so
differs from judicial procedure which rests on compulsion. But once the agreement
is made, and the arbitration tribunal has entered its award, the enforceability of the
decision rests not on consent as in conciliation, but on the compulsion of legal pro-
cess by judgment and execution.

In its details, arbitration has meant different things at different times, so that its
present form, and what is more important, the significance of its present tendency
in relation to our problem of the administration of justice, may more easily be
described after a brief preliminary review.

Arbitration is an ancient practice at common law,1 but it has had a checkered de-
velopment. In earlier times the courts, having few cases and being jealous of their
prerogatives, viewed it askance and accorded it little support;2 later,
e tlise oj havmrr crowded dockets and being overworked, the courts set the seal

A h't i'

Arottration Qf ^-nejr emphatic approval upon it. Again, arbitration has at times
been in vogue and has then relapsed into disuse. It was frequently employed in an
organized way by New York merchants as early as 1768,3 and in Boston in 1819 a
plea was made for its more extended development.4 It underwent a process of statutory
development, following the course in England,5 but during the last quarter of the
nineteenth century it existed as an unused appendage to the legal machinery for
disposing of controversies.

Arbitration as provided for by statute6 in effect permits disputants to create a
tribunal of their own either by agreeing on the persons to arbitrate or by agreeing
to use the arbitration machinery of some private organization, as a chamber of cora-

1 5 Corpus Juris, 16.

- 1 Journal of the American Judicature Society, No. 2, p. 15.

3 Commercial Arbitration. Report of the Special Committee on Arbitration of the New York Chamber of Commerce

(1911), page 6.

* Honestus: Observations on the Pernicious Practice of tlie Law (1819), page 8.

6 For a history of the English statutory development see American Judicature Society, Bulletin XII, page 12.

6 Typical statutes are those of New York, Code of Civil Procedure, chap. 17, tit. VIII, §§ 2365-2386.

ARBITRATION 69

merce. This agreement is generally called a "submission," and if it contains a pro-
vision to that effect, the law permits the award to be entered as a court judgment and
enforced in like manner. The great defect in the American statutes is that either
party may, after the submission and any time before the final award, revoke his agree-
ment and thereby annul all the proceedings.1

The arbitration proceeding is obviously one not conducted according to the legal
rules of procedure and evidence. So long as the arbitrators give the disputants a fair
chance to present their full case, they can conduct the hearings as they like and ac-
cept such evidence as seems to them helpful. More important, statutory arbitration
need not at all be a determination of right and wrong according to rules of substan-
tive law. An award may be revoked for fraud, corruption, or serious and prejudicial
misconduct, just as the decisions of a court may be set aside on like grounds, but
there is no authority for revoking a finding because it fails to accord with rules of
law. In its Handbook for Arbitrators the New York Chamber of Commerce says:2

"If any law points are involved, they should disregard pure technicalities and
go to the merits. If they believe that the legal proposition is based upon sound
sense and the experience of mankind generally, they should follow it."

Arbitration has been coming more and more generally into use through the in-
sistence of merchants acting through their trade groups or chambers of commerce.
Under the energetic guidance of Charles L. Bernheimer a splendid organization has,
since 1911, been built up under authority of the Chamber of Commerce of the State
of New York,3 which has been followed elsewhere, notably by the Chicago Association
of Credit Men.4 This revival has been forced by three considerations, — first, a desire
for a decision by an expert having personal knowledge of trade conditions and cus-
toms, a thing which the courts have never been able to afford;5 second, a hope of
supplanting the enmity provoking litigious method with an amicable procedure which
would not interrupt business relationships; and thirdly and chiefly, a determination
to escape from the intolerable delays of the regular administration of justice.6

AVhile business men have desired expert decisions, a more liberal attitude toward
trade customs, and have preferred a prompt decision according to conscience, the
arbitrium boni viri of the Roman law,7 to a delayed judgment according to law, the
rise and expansion of these organized but extra-legal arbitration tribunals does not
at all reflect a dissatisfaction with a justice ascertained and administered according

1 This has been remedied in England. American Judicature Society, Bulletin XII, page 19.

2 Commercial Arbitration, Report of the Special Committee on Arbitration of the New York Chamber of Commerce
(1911), page 52.

3 See Annual Reports of the Committee on Arbitration of the New York Chamber of Commerce, 1911-16; also

3 Am. Bar Ass'n Journal, No. 1, p. 28.

4 American Judicature Society, Bulletin XII, pages 3, 63.

6 Warren: History of the American Bar, page 148; American Judicature Society, Bulletin XII, pages 4, 62.

6 Taft: Administration of Justice, 72 Central L. Journal, 193; Business Arbitration. 99 Outlook (1911), 104 ; Werner:
Voluntary Tribunals, Missouri Bar Ass'n Proceedings for 1914. pages 145, 150; Commercial Arbitration, Report of
the Special Committee on Arbitration of the New York Chamber of Commerce (1911), page 3.

7 Cf. 73 Ann. Am. Ac. Pol. & Soc. Science, 136.

70 THE REMEDIAL AGENCIES

to rules of substantive law.1 This fact is of the highest importance, for it lays the
solid foundation for judicial arbitration. Indeed, the chief difficulty with extra-legal
arbitration has been the inability to combine with technical knowledge and prompt,
informal proceedings the desire to have the controversy determined according to sub-
stantive law which calls for trained judges.2

Commercial arbitration has not solved expense3 because it has not tried to. Costs
and fees have not been prohibitive to business men. It has, however, served to elim-
inate delay, it has greatly reinforced the idea of conciliation, of which the New York
Chamber of Commerce Arbitration Committee says,4 "Perhaps the most important
work of your Committee has been in the way of conciliation,1' and it has, through its
informal procedure, occasionally been of direct assistance to poor persons.5 For us,
its great significance is that it has revived the idea, and delivered a body blow to that
legal Cerberus of pleading, procedure, and evidence by proving that justice can be as
faithfully, more satisfactorily to the parties, and more quickly administered, even as
to claims as large as one hundred and fifty thousand dollars, through an informal
tribunal which has found no necessity for technical pleadings, or for a predetermined
detailed procedure, or for excluding the kind of logical evidence which all the world,
except the courts, uses in making its decisions.

Through several other channels the arbitration idea has steadily been coming to the
fore.6 In the legal aid societies the principle of arbitration in conjunction with con-
ciliation is daily employed.7 In the workmen's compensation acts, in order to empha-
size the informality of the hearings of disputed claims, such proceedings are given the
name of arbitration instead of trial. The 1910 Protocol in the New York cloak, suit,
and skirt industry provided a machinery whereby individual disputes of all sorts
between employers and employees, including claims for wages, might be conciliated
and arbitrated, and this proved one of the most successful features of the truce.8

1 This point is very strongly made by William L. Ransom, former Justice of the City Court of New York and Chief
Counsel of the New York State Public Service Commission for the First District, in an article entitled " The Lay-
man's Demand for Improved Judicial Machinery," printed in 73 Ann. Am. Ac. Pol. & Soc. Science, 132, particularly
pages 148, 149.

" Cf. American Judicature Society, Bulleti7i XII, page 3.

3 The expense of an arbitration hearing under the New York Chamber of Commerce is about sixty dollars.

4 New York Chamber of Commerce Committee on Arbitration, Report for 1914, page 3.

8 A woman in Maine bought by mail order a corset cover for sixty-eight cents which she claimed was defective.
The Chamber of Commerce adjusted the dispute with the mail order house.

6 See 3 Am. Bar Ass'n Journal, No. 1, pp. 36, 49-51.

7 4 Buffalo L. A. R. 5; 5 Chicago L. A. R. 22; Report of Jewish Charities of Chicago for 1916, page 70: 4 Cleveland
L. A. R. 7, 8 ; 6 Cincinnati L. A. R. 3; 21 Whittier House (Jersey City) R. 25 ; 22 Jersey City L. A. R. 17; Louisville Asso-
ciated Charities Report for 1914, page 19; Office of the Public Defender (Los Angeles), page 3; Place of the Public De-
fender in the Administration of Justice, pages 25, 26; 10 Newark L. A. R. 5; Nashville Commercial Club Tattler
for July, 1916, pages 28, 30 ; 2 Philadelphia L. A. R. 3; 3 Ibid. 4; 6 Ibid. 5; 1 Pittsburgh L. A. R. 4; 4 Ibid. 9; 30 N. Y.
L. A. R. 61; 32 Ibid. 29; 10 N. Y. Educational Alliance R. 31 ; 7 N. Y. L. A. R., No. 3, p. 23; Ibid., No. 4, p. 26; 11 76i'd.,
No. 2, p. 3; Ibid., No. 3, p. 14 ; 15 Ibid., No. 3, p. 7 ; 1 Milwaukee L. A. R. 9 ; Report of First Conference of Legal
Aid Societies, pages 8, 13 : Ibid., Fourth Conference, page 8 ; Proceedings of Virginia Conference of Charities and
Correction in 1916, page 80 ; Report of the Attorney of the St. Louis Legal Aid Bureau to the Mayor, page 3. In Ger-
many several of the legal aid offices are empowered to act as official arbitrators. Reichs-Arbeitsblatt for July 27,
1911, page 526.

8 United States Bureau of Labor Bulletin No. 98, pp. 203, 230, 247, 248; Brandeis: Business a Profession (1914),
page xxxviii.

ARBITRATION 71

An interesting manifestation of arbitration is to be found in New York's East Side,
where the newly arrived immigrants, having learned by experience that if both parties
to a lawsuit in a Russian court were Jews both would lose, have been in the habit of
submitting all controversies to the Rabbi for his arbitration. The plan was entirely
successful until it was attempted in the same informal manner to obtain divorces.1

§ 2
" There is a growing disposition on the part of our organized city courts to assist
in this movement'" 2 toward arbitration. There are signs that the courts are profit-
ing from the object lesson and are preparing to do their share. In the
Cleveland and Cincinnati Municipal Courts provision is made by rule
for arbitration.3 The Municipal Court of Chicago has established an
Arbitration Branch as an auxiliary to commercial arbitration.4

In April, 1917, the Justices of the Municipal Court of the City of New York
issued a series of rules by which it is now possible for parties, by agreement, to submit
a dispute to an agreed arbitrator who may be the judge of the court.5 Under these
rules there are no costs or fees of any kind, the only pleadings are a brief recital of
the nature of the controversy, rules of evidence do not apply, the parties may not
withdraw after the first hearing, and an award becomes a judgment two days after
filing. No statistics of work are yet available, but it is estimated that under these
rules, together with the conciliation rules, half a million controversies will annually
be settled.6 As the Justices say in their statement accompanying the rules, "an
opportunity is now given to have controversies settled impartially, quickly, and
without expense."

A judicial arbitration of a small claim is exactly the same as a proceeding in a
small claims court, for the keynote of both is an informal procedure which makes
for despatch, saves expense, and generally renders the attorney unnecessary. And in
both the judgment rendered is in accordance with substantive law. Arbitration, how-
ever, is not limited to small claims, but extends to all claims, irrespective of amount.

§ 3
The successful extension of judicial arbitration will be one more step toward free-
dom and equality of justice. As to the cases which can come within its sphere, it

1 11 Educational Alliance R. 55; 22 N. Y. L. A.R. 11.

2 1 American Judicature Society Journal, No. 2, p. 15.

3 Rule 23 of the Cincinnati Municipal Court; Rule 29 of the Cleveland Municipal Court.

4 1 American Judicature Society Journal, No. 2, p. 15; Ibid., No. 5, p. 145.

0 These rules are printed in the New York Law Journal for April 26, 1917, and in 1 American Judicature Society

Journal, No. 2, p. 15. See also No. 6, p. 153.

6 Report of the Philadelphia Municipal Court for 1915, page 37.

72 THE REMEDIAL AGENCIES

breaks down two of the defects of the traditional administration of justice, for where
_, , .it exists costs are minimized or abolished and delays are absent. The

T ' lltllTC Of

fundamental problem of the expense of counsel is solved because in
most cases it will be unnecessary for parties, in the absence of plead-
ings, technical procedure, and rules of evidence, to retain attorneys.
The clerk tells them how to file the submission, and for the rest they merely appear
and tell their stories.

Arbitration is, of course, always subject to the limitation th J; it can begin only
by agreement. How far it can go is to-day purely a matter of conjecture. When it
was sought to change the Athenian rule that if a plaintiff claimed a debt of twenty
minae and proved eighteen judgment must be for the defendant, Aristotle replied
that such a proposal would turn a judicial proceeding into a mere arbitration. The
modern world says if that be arbitration, then by all means let us have it. The tem-
per of to-day is to pay scant regard to such theoretical logical perfection if by its
sacrifice a more practical, efficient, and serviceable judicial administration may be
secured.1 While this disposition is calculated to secure for arbitration a definite place
in the machinery for administering justice, the development will not come in a day
or a year. As with conciliation, arbitration offers no immediate guarantee of a more
equal administration of the laws.

In their effect on the problem of denial of justice and in the solution that they
afford, small claims courts, conciliation, and arbitration have much in common. In
all three, court costs cease to prohibit, for they have been minimized or
" abolished. The proceedings, in their very nature, make despatch easy
and delay difficult. In parallel ways they avoid the fundamental difficulty of the
expense of counsel by making the employment of attorneys unnecessary. In all con-
ciliation, in the large proportion of small claims, and generally in matters submitted
to arbitration, after rules of pleadings, procedure, and evidence have been eliminated,
there is nothing left for the lawyer to do.

We now pass to a different type of agency dealing with a different sort of case in
which the solution is not so easily obtained, wherein, even after simplification of pro-
cedure has done its best, a part of the function of the attorney and the need for his
services still remain.

1 Cf. 73 Ann. Am. Ac. Pol. & Soc. Science, 19.

Chapter XI
DOMESTIC RELATIONS COURTS

In my judgment the present system of enforcing the payment of alimony
by court proceedings should be supplemented by the power lodged in the
same court to issue a warrant for non-support in proper cases. A technical
contempt proceeding costs a destitute wife more than she is apt to get out
of it if her lawyer receives what his services are worth. Judge Lacey of the
Detroit Court of Domestic Relations?

§1

OF the four great classes of cases which make up the larger proportion of the
legal difficulties of the poor, the second is domestic troubles. In this unhappy
and perplexing field are included all the difficulties between husband and wife, between
„ parent and child, illegitimacy, juvenile and contributory delinquency,

„. . ' guardianship, custody, and adoption. Here the law, even at its best,

labors under a heavy disadvantage in trying to work out justice because
the controversies are peculiarly intimate in nature and because they are produced by
causes as variable and elusive as human nature itself, further influenced and compli-
cated by everything in our present day civilization from the economic structure of
society to religion. Yet in precisely this field the law is increasingly being urged to put
forth its supreme effort, its sphere is being widened, new complementary administra-
tive agencies are being added to it,2 because in all these controversies is involved the
security of the home, on which the existing state is founded, and the welfare of chil-
dren, on whom the future state depends. In the main the state must rely on indi-
vidual complaint to discover wrongs in the home, and only through the proceeding
instituted by the individual claimant can the state set in motion its protecting and
guarding machinery. In affairs of such import denial of justice transcends individual
or personal injustice and, like a cancer, eats into the health and moral well-being of
the body politic.

For securing these interests the substantive law makes reasonable provision. There
are to-day a multitude of rights, remedies, and punishments. As between husband
and wife there is divorce, with or without alimony, to be paid in a lump sum or under
a decree for periodic payments; separate maintenance (also called separate support,
judicial separation, or limited divorce), with or without a decree ordering periodic
payments for support; and the criminal proceedings for desertion, abandonment, and
non-support, which do not separate the parties, but either order pavments for sup-
port or punish the offender for the crime. In these proceedings, questions of custody
and support of children may or may not be involved. As between parent and child

1 25 American Legal News, No. 9(1914), p. 13. The word "alimony." in Michigan law, means payments under a sep-
arate support decree.

2 Pound: Limits of Effective Legal Action, 3 Am. Bar Ass'n Journal, No. 1, p. 66.

74 THE REMEDIAL AGENCIES

there is guardianship, custody, and the criminal proceedings for desertion, abandon-
ment, non-support, and contributory delinquency. Concerning children, there is adop-
tion, truancy, and other juvenile delinquency. As to illegitimacy, some states give
civil remedies, others criminal, and a few none. With all these proceedings the poor,
and the children of the poor, are immediately concerned.

No one court as yet comprises within its jurisdiction all these matters. One disin-
tegrating force is the sharp historical distinction between the civil and the criminal
law. As courts are now organized, each has a slice of this whole jurisdiction. There is
neither unification, nor specialization, nor even uniformity. In Boston divorces are
granted by the Superior Court with an appeal to the full bench of the Supreme Judicial
Court, separation suits are heard in the Probate Court with an appeal to the Superior
Court on the civil side, complaints for non-support are heard in the Municipal Court
with an appeal to the Superior Court on the criminal side, and juvenile matters are
determined in the Juvenile Court with a like appeal. In Cleveland family cases may
come before any one of eighteen judges.1 The confusion that results from such mul-
tiplicity robs the law of much of its possible effectiveness.2 Instances such as the fol-
lowing have happened in Boston. A wife, living apart from her husband because of
his brutality, brings a proceeding in the criminal court of one district to compel the
husband to support herself and the children. The court rules that until the Probate
Court has passed on the question of her right to live apart and substantiated her posi-
tion by giving her a decree legally permitting her to live apart, it cannot order the
husband to support a wife not living with him. The wife then goes to the Probate
Court, proves her case, and gets her decree. Meanwhile she has taken another position
and moved her home, or the husband may have moved. She then brings her complaint
in another district court which has jurisdiction and is told that inasmuch as a pro-
bate decree is outstanding, the criminal court has no jurisdiction and cannot hear the
case.3 Both decisions are honestly made by judges who are interpreting the law as
they understand it ; but the result is disastrous.

§ 2
It is the consensus of the best opinion that there must be unification of jurisdic-
tion and specialization by judges.4 These ends have been accomplished to an extent
by the creation of special courts, or special sessions of courts, to which all cases of a
given type are sent and where the same judge permanently presides. Such are the

1 8 Cleveland L. A. R. 7

2 Seventh Report of the Municipal Court of Chicago (1913), page 89.

3 See Association of Justices of District, Police, and Municipal Courts of Massachusetts, Committee on Law and Pro-
cedure, Report No. 7 (1916), page 17.

* American Judicature Society, Bulletin VI, pages 21, 22 ; Address of Judge Brown of the Municipal Court of Phila-
delphia before the National Conference of Probation Officers (1917), page 6: Harley: Ultimate Types of Inferior
Courts and Judges, 22 Case and Comment, 6.

DOMESTIC RELATIONS COURTS 75

domestic relations courts in Chicago, Cincinnati, New York, Philadelphia, and Bos-
ton. In the development toward unification, the interesting fact, and

n J?. one which is of great immediate concern to our problem, is that the
Use of Crim- ... . ...

J criminal jurisdiction is absorbing the civil, instead of the civil the

criminal. Although the domestic relations and juvenile courts which

are to be found chiefly on the criminal side of the court are rapidly eliminating the

traditional forbidding aspects of a criminal trial by informality of procedure, by using

the summons instead of the arrest, by having the attending officers in plain clothes,

and by having the parties sit around a table with the judge instead of standing in

cages or behind bars, nevertheless the machinery of the criminal law is more and

more being used.

This is entirely logical because the law has always claimed that the state has a
direct interest in all marital and family questions, and the best way to enforce that
interest in fact is through criminal proceedings to which the state is a party and
over which it can keep a much closer watch. The accretion to criminal jurisdiction
at the expense of civil jurisdiction, however, is less the result of logic and more of
the fact that the domestic relations courts have proved more effective and more capa-
ble than their civil predecessors. Nearly all of these matters were originally civil; then
followed a series of statutes, culminating in the comprehensive uniform desertion act,
which afforded criminal remedies.1 To care for the large volume of cases brought under
the criminal statutes, the domestic relations courts2 or sessions were established, and
they went at their task so thoroughly and served so efficiently that inevitably a tend-
ency set in to widen their jurisdiction.3 The Philadelphia Domestic Relations Court,
which has jurisdiction over all matters except full and limited divorce, now asks that
divorce jurisdiction be added to it.4 In addition to the criminal proceedings, the Cin-
cinnati Court of Domestic Relations has jurisdiction over divorce, separate support,
and annulment, and it administers the mothers' pension fund law.5 Its jurisdiction
is complete except as to matters of guardianship, adoption, and illegitimacy.

The most complete court was that in Detroit under a law passed unanimously by
both houses of the legislature in 1913, establishing a domestic relations court and
giving to it, in addition to the usual criminal jurisdiction, exclusive control over di-
vorce, separate support, custody of children, illegitimacy, and violations of the com-
pulsory education law. The court was organized September 1, 1913, and was declared
illegal by the Michigan Supreme Court on the ground that the act which created it

1 Cf. Association of Justices of the District, Police, and Municipal Courts of Massachusetts, Committee on Law and
Procedure, Report No. 7 (1916), page 6.

2 The term "domestic relations courts" in its widest sense, which is here used, includes the juvenile courts.

3 In 1910 the Pittsburgh Legal Aid Society argued along this line. 2 Pittsburgh L. A. R. 11, 12. See also Family
Desertion, Report of the Committee on Desertion of the National Conference of Jewish Charities (1912), pages 37, 38.

4 Report of Philadelphia Municipal Court for 1915, page 5.

8 First Annual Report, Court of Common Pleas, Division of Domestic Relations, Hamilton County (1915), page 3.

76 THE REMEDIAL AGENCIES

was local, instead of general, as required by the constitution.1 Of this broad jurisdic-
tion, Judge Lacey writes : 2

" In conclusion, let me emphasize the tremendous advantages of a court with
combined jurisdiction over all family cases in that it prevents either spouse from
shifting from one court to another and prevents the separation of the family in
its litigation. The court should be able to deal with the family as a unit and
given ample power to effectuate justice. The present system of non-support cases
in one court, abandonment in another, divorce in a third, and children in a fourth
tends to nullify the power of each court for good. . . .

" I believe the most essential and valuable feature of the Domestic Relations
Court of Wayne County was the combination of jurisdiction which it had over
all family cases, which aimed to enable one judge to hear and dispose of every
phase of the whole controversy in a disturbed household.''''

§ 3
Desertion and refusal to support wives and children were made crimes in order to
protect the state's interest in the family, but this change automatically worked a
great improvement in the position of the poor before the law because
5r_y . it made available the processes of the criminal law.
J . There are no court costs to prohibit access to the criminal courts.

There are no fees for writs, entry, trial, or judgment. Service of process
is made by police officers without charge to the complainant. Witnesses
are summoned in like manner and their fees for attendance paid out of public funds.
Deserted wives, who formerly have found the path to relief through the civil courts
blocked by the requirement of costs which, by hypothesis, they were in no position
to pay, now are accorded unpriced relief.

Criminal process is summary. The return day is as soon as the accused can be found
and taken into custody. If the defendant is not bailed, the case is tried at once; if he
secures bail, there may be a continuance, but rarely for more than a week, and that
often is granted only on condition that a payment be made to support the wife during
that week. It is only natural that under these circumstances persons should prefer
the criminal remedies.3 The contrast between the two systems, and the denial of justice
caused by the delays in the former administration of justice, is strikingly illustrated
by the following case.4 A narration of the facts renders comment superfluous.

A woman, who had suffered physical abuse from her husband and was not being
supported by him, applied to the Legal Aid Society for relief. The attorney investi-

1 25 American Legal News, No. 9 (1914), p. 5. For the decision see 180 Mich. 329.
■ Ibid., p. 13.

3 Association of Justices of the District, Police, and Municipal Courts of Massachusetts, Committee on Law and Pro-
cedure, Report No. 7, page 17.

4 In the files of the Boston Legal Aid Society, number 1009; Probate Court for Sulfolk County, number 162,928; Domes-
tic Relations Session of the Boston Municipal Court, number 1914 D 161.

DOMESTIC RELATIONS COURTS 77

gated the case and filed a petition for separate support in the Probate Court on Octo-
ber 31, 1913. The next day he called for the citation and had it served by a con-
stable at a cost of $1.60. He had affidavit of service made, filed it, and then awaited
the elapse of fourteen days until return day. On the fourteenth day the respondent
filed an appearance. An agreement for a decree was entered into November 20, 1913.
The attorney then saw a judge and had a time assigned for hearing, a week later, at
which time a decree was entered. The respondent paid nothing. The legal aid attor-
ney then filed a petition for contempt proceedings, secured the citation the follow-
ing day, had it served, made affidavit of service and filed it, and again awaited the
elapse of fourteen days till return day. Again the respondent filed an appearance.
Notice was then sent to the respondent's attorney, a judge was seen, and the case
assigned for hearing on March 30, 1914. On that day the case fortunately was reached,
— had it not been, it would have been dropped from the list and the notice, assign-
ment, and hearing would all have had to be gone through again, — but the respond-
ent did not appear and was defaulted. A capias authorizing his arrest was issued. This
was delivered to a sheriff, who arrested the husband after four o'clock when court
had adjourned, so that he was taken to jail to be kept overnight at the wife's expense.
The next morning the sheriff brought him before the court, the case was heard, and
the judge released the respondent on his agreement to do better. The cost for the
sheriff and the board at jail was $16. During April and May the husband still paid
nothing.

On June 2, 1914, the wife again appealed to the Legal Aid Society. On the same
morning the attorney had a criminal complaint sworn out, which was at once delivered
to police officers for service. The husband was traced and found at midnight trying
to get out of his room by means of the fire escape. He was put under arrest and brought
into court the next morning. Trial was had at once, the husband was convicted, and
sentenced to three months at hard labor, the state to pay fifty cents a day toward
the wife's support. The civil proceeding took five months, cost $17.60, and resulted
in nothing ; the criminal proceeding required twenty-six hours, cost nothing, and re-
sulted in punishment of the guilty husband and provision for assisting the wife.

Judges of domestic relations courts have been the first to sacrifice their own Con-
es

venience for the sake of the persons coming before them, so that hearings might be
prompt and no loss through absence from work be occasioned. In Kansas City the
court opens at 7.30 a.m. and in Los Angeles it begins at 5 p.m. and sits as late as
is necessary. These courts are respectively called " The Sunrise Court " and " The
Twilight Court," and they deserve the prominence which their picturesque titles have
given them because of their consideration for the parties who need their assistance
and must earn their living at the same time.

Thus our first two defects in the traditional administration of justice are conspic-
uously absent from the modern domestic relations courts. As to cases within their
jurisdiction, delays and court costs do not operate to defeat justice. These courts.

78 THE REMEDIAL AGENCIES

likewise, squarely meet the third and greater difficulty of the attorney's expense and
reduce it to a minimum by the double process of eliminating the attorney's function
so far as it is dispensable and, as to the rest, of supplying the attorney or some one
to perform his functions.1 Complaints have been so standardized2 and simplified that
a wife, under the direction or with the assistance of the clerk, can make out the neces-
sary papers to start proceedings. Under the general practice the complaint is passed
on by the judge before the warrant issues. In this way the clerk and judge decide for
her the questions of jurisdiction, venue, and the items of the complaint which on the
civil side would require an attorney to draw the libel for divorce or the petition for
separate support. While this plan is generally satisfactory, it is not always so. Errors
in allegations, in material dates, or in jurisdiction are sometimes made because the
court may not have in its possession the facts which an attorney would ascertain be-
fore drawing any petition. In some jurisdictions this danger is obviated by having
a preliminary investigation by the probation staff, or by giving the wife the assist-
ance of a deputy district attorney.

After proceedings are begun and the defendant is served with notice or arrested,
the need for the attorney's function manifests itself in three places, — in investigating
and preparing the case for trial, in conducting the trial, and in following up the case
after judgment. This last is a peculiarity of domestic relations cases, but it is perhaps
the most important of all because the decrees or orders for support are generally for
weekly or other periodic payments, so that unless an order is kept track of, and sup-
plemental proceedings are instituted where necessary, the judgment or order is of very
little value.

The work of preparation for trial is now universally in the hands of the probation
staff, which is an indispensable adjunct of every domestic relations court.3 Thus far
this plan of investigation by officers of the court has proved eminently successful. In
addition to the facts of the dispute, the personal history of both parties is fully inves-
tigated, the cooperation of employers, churches, and charities is secured, and a type-
written report as accurate and as complete as any attorney would expect from his
junior or his investigator is prepared.

At the trial, several plans are in use. In some courts the proceedings are quite
informal, so that the complainant has little difficulty in telling her own story and
in answering the judge's questions. In others, the probation officer acts as a sort of
informal counsel. In yet others, the complaining witness has the benefit of the state's
counsel, either an assistant district attorney, or an assistant city prosecutor. There is
much complaint that these attorneys try the cases in a most perfunctory manner.

1 In New York the Legal Aid Society reports : "The Domestic Relations Court, dealing with support, has gone a long
way toward relieving us of the burden heretofore borne in non-support cases." 41 N. Y. L. A. R. 17.

2 See Association of Justices of District, Police, and Municipal Courts of Massachusetts, Committee on Law and Pro-
cedure, Report No. 7, page 21.

3 For a statement of this sort of probation work see Annual Report of Division No. 2 of the Kansas City (Mo.) Muni-
cipal Court (1912-13), page 14; Association of Justices of District, Police, and Municipal Courts of Massachusetts,
Committee on Law and Procedure, Report No. 7, page 36. Cf. Wells: The Man in Court, page 269.

DOMESTIC RELATIONS COURTS 79

This objection is founded on fact, but it is a matter outside the scope of this report,
its cure being political, not judicial reform. Any system that can be devised is neces-
sarily predicated on the theory that the officers appointed by the state or elected
by the people will perform their work to the best of their ability. Of the three plans,
it is hard to say which is best. The first two, if the defendant has no counsel, secure an
informality, an absence of interruption and technical objection, which greatly facili-
tates the court in dealing with cases of this sort. On the other hand, where the defend-
ant's liberty is at stake, he has a constitutional right to counsel and a right to have his
guilt clearly established in the manner prescribed by law. If he does appear with coun-
sel, and if he raises questions of law or fact with which the probation officer cannot
cope, the wife ought not to be left at a disadvantage. It is imperative that the judge,
and highly desirable that the probation officer, should remain impartial, so that it is
unwise to thrust on them the burden of conducting the wife's case. It would not be im-
possible to work out a combined procedure whereby the matter would be heard infor-
mally if the parties did not appear with counsel, and, if the defendant did appear with
an attorney and the case was one where the wife's interests required similar protection,
the court could order a short suspension or continuance and summon in an attorney
from the district attorney's office or the legal aid society to conduct the prosecution.

In the work of following up orders the procedure in the domestic relations courts
is unexcelled. Under a civil order for support the husband generally pays the alimony
or allowance directly to the wife. It inevitably results that there are frequent dis-
putes as to just what has been paid. The system breeds litigation. And further, as
we have seen, if the husband fails to pay, the wife is obliged to start a new form of
proceeding called " an order to show cause why the respondent should not be adjudged
in contempt of court," which proceeding again involves delays, costs, and attorney's
fees. These civil supplementary proceedings are a failure. Respondents who are ad-
vised as to how they can delay, and procrastinate, and finally escape altogether, worry
not at all about their technical contempt, but feel a genuine contempt for the court
and its weak proceedings.

On the criminal side, the order requires the husband to pay the weekly sum directly
to the probation officer or to some like officer, as the Public Trustee in Los Angeles.
Thereafter there can be no dispute about payments. If the man fails to pay, a pro-
bation officer checks up the case to see if the failure was occasioned by unemployment
or illness. If it was wilful, the supplementary proceedings are summary. In law, the
court order has put the husband on probation, therefore if he violates the terms of
the probation, he must be surrendered to the court. This means that an officer is sent
out to arrest the defaulting probationer and bring him before the court. The hearing
is most summary. When these matters are originally heard the courts quite frequently
make a finding of guilty, impose sentence, then suspend sentence, and put the man
on probation. At the supplemental hearing, therefore, the court mei'ely puts into
effect the original sentence. The only facts in issue are whether the husband has

80 THE REMEDIAL AGENCIES

failed to pay, and whether the refusal was wilful. All these facts are within the pro-
bation officer's possession. As to all proceedings after judgment in the domestic rela-
tions court the private attorney is obviously unnecessary, being entirely supplanted
bv the probation officer. The rights of the wife are perfectly protected.1

The following statistics, showing how much has been collected for wives and children
through the machinery of the domestic relations courts which operate without any
expense to the parties, afford striking evidence of the great progress made in recent
years in this particular field of law toward a free and more equal administration of
justice.

omestic Relations Court

Period

Actual Payments

or Probation Staff2 in

for Support

Chicago3

1911

$19,618.05

Chicago

1912

61,419.78

Chicago

1913

99,433.44

Chicago

1914

94,869.08

Chicago

1915

117.179.78

Philadelphia4

1913

320,989.08

Philadelphia

1914

345,490.94

Philadephia

1915

409,329.59

Philadelphia

1916

520,066.80

Cincinnati 5

1914

10,157.34

Cincinnati

1915

17,343.19

Detroit8

Sept.

, 1913, to

April

1914

46,875.00

Boston 7

1913

23,003.00

Boston

1914

36,500.00

Boston

1915

34,621.00

Massachusetts8

1916

303,009.01

As the domestic relations courts have applied themselves to the fast growing problem
„ .,. . of desertion and non-support they have more and more employed the
. . method of conciliation. The interest of the state in these cases is that

homes should not be broken up except for grave causes and that fami-
lies should be reunited whenever possible A litigious proceeding is de-
structive, it is calculated to embitter the contestants, and after a trial in open court

1 For a concrete illustration of how thorough the probation work is, see the forms used in Philadelphia, printed in
Philadelphia Municipal Court Report for 1915, pages 236-243. Forms 5-9 relate to follow-up work. See also Address
of President Judge Brown before the Men's Club of Market Square Presbyterian Church (1914), page 17.
- For a statement of the orders made in the New York Juvenile Court, see its Report for 1916, page 56.

3 Eighth and Ninth Reports of the Chicago Municipal Court, page 60.

4 Philadelphia Municipal Court Report for 1915, page 164 ; Ibid, for 1916, page 67.

0 First Annual Report, Hamilton County Court of Common Pleas, Division of Domestic Relations (1915), page 18.

6 25 American Legal News, No. 9, p. 6.

7 Association of Justices of District, Police, and Municipal Courts of Massachusetts, Committee on Law and Pro-
cedure, Report No. 7, page 27.

8 Eighth Report of the Massachusetts Commission on Probation (1916;, Public Document No. 85, page 9.

DOMESTIC RELATIONS COURTS 81

husband and wife feel a real grievance toward each other where before there may have
been only a temporary discontent. A conciliation proceeding gives the court its only
chance to repair, reunite, and construct.

A conciliation proceeding, as has earlier been pointed out, is simply a method and
one that can be used in any case in any court. It can be employed in divorce as well
as in non-support, in the criminal court as well as in the civil. To the extent that it
is used, it automatically promotes equality before the law because in its nature it is
a summary proceeding requiring no costs, and depending for success more on the
absence than the presence of counsel. Conciliation is used very generally by the do-
mestic relations courts as a sort of preliminary proceeding, particularly in Chicago,1
Philadelphia,2 and Kansas City.3 In Cleveland a special division of the Court of
Common Pleas, where divorce matters are heard, is in contemplation.4 Where the
domestic relations courts have been given civil jurisdiction, as in Cincinnati5 and
Detroit,6 they have extended the use of conciliation to the civil proceedings of di-
vorce and separate support.

It is readily apparent that the domestic relations courts, as to the large majority
of cases within their jurisdiction, secure freedom and equality of justice to a degree
hitherto never attained. There is a margin where, owing to the com-
; plexity of the issues or the difficulty of legal points involved, the ser-

vices of an attorney will be required, but such cases are the minority.
This type of court is now clearly established, and will undoubtedly in a short time
extend itself into every large city. It almost completely solves the problem of denial
of justice in cases of desertion, abandonment, non-support, and also of illegitimacy,
where such cases are within its jurisdiction.

For the greater part, divorce, separate maintenance, and questions of custody re-
main unaffected. But we have seen the steady drift toward incorporating these matters
within the jurisdiction of the domestic relations courts, and further the tendency
of such courts, wherever they have acquired civil jurisdiction, to apply to the civil
matters the same processes as those originally developed through the summary crimi-
nal remedies. This movement is only at its inception, but signs of its development
are clear. In Detroit the court carried over into divorce cases all the machinery for
investigation by the probation staff.7 The Philadelphia court urges legislation to

1 Seventh Report, Chicago Municipal Court, page 88.

2 Philadelphia Municipal Court Report for 1915, pages viii, 9, 159 ; Theodore Roosevelt : The Brotherly Court of
Philadelphia, Metropolitan Magazine for May, 1917, page 66. As to the success of conciliation, see Philadelphia
Municipal Court Report for 1916, page 65.

s Annual Report, Division No. 2, Municipal Court of Kansas City (1912-13), page 11.

* Proceedings of Fourth Conference of Legal Aid Societies, page 113 : see also The New Republic for December 2,
1916, page 124.

6 First Annual Report, Hamilton County Court of Common Pleas, Division of Domestic Relations, page 6.

6 25 American Legal News, No. 9, p. 7. 7 Ibid., pp. 10, 11.

82 THE REMEDIAL AGENCIES

permit it "to utilize the probation arm of the Court in divorce proceedings."1 In
Cincinnati, every divorce case is thoroughly investigated and reported on to the
Court before the parties put in their evidence.2 The report blanks require, in addi-
tion to the facts of the dispute, a complete personal history, including such matters
as church membership, moral character, temperance, mentality, occupation, a state-
ment as to the character of the home, its sanitation, cleanliness, and order, and de-
tailed figures as to the earnings and joint holdings of the parties. The Detroit Court
proposed to use the summary criminal processes for enforcing the payment of civil
orders in divorce and separation cases.3

From our particular point of approach this means that delays are being reduced,
and that part of the attorney's work of preparation and of following up court orders
is being done by the administrative arm of the court. How far this may go is prob-
lematical. A complete development is justified in order to give the state an oppor-
tunity to protect its paramount interest. Denial of justice to the individual decreases
in exact proportion as the administrative work done in the state's interest increases.

While the territorial expansion of domestic relations courts will be rapid, the
increase in jurisdiction of each court to include all domestic disputes and all pro-
ceedings relating thereto will probably be slow. There is a gulf, fixed by history and
tradition, between civil and criminal matters that will not easily be bridged. The
individualistic conception in law revolts at the idea of a court deciding a divorce
case on what it knows through its own agents instead of from such evidence as the
parties choose to offer, and this idea will die only as the fact that the state is the
supreme party in interest in all litigation, particularly domestic litigation, gradu-
ally becomes recognized.

1 Philadelphia Municipal Court Report for 1915, page 6.

* In 1915 the probation staff made 359 interviews and ordered 14 medical examinations in divorce cases. First

Annual Report, Hamilton County Court of Common Pleas, Division of Domestic Relations, page 18.

3 See quotation at the head of this chapter.

Chapter XII
ADMINISTRATIVE TRIBUNALS

So far for three generations our political life has been controlled by court
decisions. But no court can alter on review the formal decision of our
mightiest commission. While we cling to all the extraneous and adventitious
elements of a mediaeval procedure, civilization pours its real judicial prob-
lems into new channels that are almost without a semblance of contentious
procedure, Herbert Harley in A Modern Experiment in Judicial Adminis-
tration.1

IF one were compelled to state the most important experiment in the administra-
tion of justice made in the twentieth century, the answer would unhesitatingly be
the attempt to secure justice through administrative tribunals. Such tribunals have
sprung up with amazing rapidity, they have taken over an enormous amount of litiga-
tion formerly handled by the courts, and the law concerning administrative justice is
the most rapidly growing branch of law in our entire jurisprudence.2 Profound as has
been the effect of this great movement, which has extended throughout the United
States,3 on our traditional method of judicial administration, its effect on our partic-
ular problem has been no less significant and important. For one of the chief causes
which swept these tribunals into being on a wave of popular feeling was the general
dissatisfaction with the inequalities of the old law,4 not only in its substance but in
its enforcement.

There are two great classes of administrative tribunals, — those which administer
the workmen's compensation acts, generally named Industrial Accident Commissions,
and those supervising and regulating the public service corporations, such as railway,
gas, and electric lighting companies, of which the United States Interstate Commerce
Commission is the most powerful and the chief exponent. Though having much in
common, the two groups are sufficiently distinct to warrant separate consideration.
The Industrial Accident Commissions will be dealt with first.

§ 1
In discussing the relation between denial of justice and the substantive law we have
earlier seen that the one great charge which could properly be made against the

1 An Address before the Louisiana State Bar Association in 1916, reprinted separately. See page 36.

2 Report of Dean Pound to the President of Harvard University for 1916-16, at page 1.

3 For example, the workmen's compensation acts began to be adopted in 1911. At the close of 1917 such acts were in
force in thirty-seven states and three territories.

* This dissatisfaction has by no means subsided. The current of affairs still runs into the" new channel. The war le-
gislation which prescribes the allowances and allotments for soldiers and their dependents, awards compensation for
injuries in line of duty, grants insurance to all fighting men, and protects their policies of insurance from lapse or
forfeiture is giving rise to hundreds of thousands of claims which will in the near future run into the millions. No
part of this work has been entrusted to the courts. Entire and exclusive authority is vested in what has already
become the world's greatest administrative tribunal— The Bureau of War Risk Insurance.

84 THE REMEDIAL AGENCIES

equality of the substantive law was its treatment of injured workmen.1 And we have
seen that around this inequality of substance grew up a monstrous in-
, equality of administration and procedural enforcement which consti-
tutes one of the blackest pages of our legal history.

That delays were systematically used by defendants and by the lia-
bility insurance companies in particular to defeat or impair rights is
common knowledge. Costs were entirely beyond the reach of the average plaintiff,
for in addition to the usual fees paid to the court, there were always a number of
witnesses to be summoned, and the medical expert, charging his expert fee, was an
essential element in the proof of every case. As the workmen's compensation acts
remedied the substantive defect, by substituting the principle of insurance for that
of liability for fault, so they also dealt rigorously with the procedural defects of ad-
ministratiorL Delays have been greatly lessened; so far as the Industrial Accident
Commissions and the proceedings before them are concerned, unconscionable and
unreasonable delay is entirely absent.2 A member of the California Industrial Acci-
dent Commission has well expressed it:3

" In industrial accident cases more than in any other form of legal controversy
a delay of justice often amounts to a denial of justice. It is therefore incumbent
upon the Commissioners charged with the administration of the act jealously
to guard procedure against falling into the rut of procrastination. It is the pur-
pose of the Commission to decide cases in as short a time and with as little for-
mality as is consistent with correct decision. We do not regard as incompatible
the prompt determination and just disposition of pending causes. Under the
rules of practice and procedure adopted by the Commission the average case is
brought to a final determination in a fraction of the time usually consumed in
the trial of a personal injury case in a court of law."

Costs cease to act as a prohibition. No fees are paid to the commissions for their
services.4 Such processes and notices as are required are sent by mail.5 Witnesses must
still be summoned, but fewer are generally required because of the information which
the commission itself secures, and the great expense for expert medical fees is very
largely made unnecessary. The compensation acts provide for the appointment by the
commission of a physician who, acting in an impartial capacity, examines the injured
man and reports to the commission. The charge for his services is borne either by the
insurance company or by the state. In some states it is provided that the report itself
shall be admissible in evidence, so that there is not even the expense of an ordinary

1 See ante. Chapter III, § 2, page 14.

2 For typical statutory provisions see Connecticut Public Acts of 1913, c. 138, as amended by Public Acts of 1915,
c. 288, Part B, §§ 24-27 ; Minnesota General £a?«so/1913, c. 467, § 22 (2), as amended by General Laws of 1915, c. 209,

5 10. Cf. Report of New York Industrial Commission for 1915, page 124 ; Ibid, for 1916, page 115.

3 Hon. Meyer Lissner: Procedure before the California Industrial Accident Commission, 1 Southwestern L.
Uev. 83.

4 Fees are abolished by most compensation acts.

6 1 Southwestern L. Rev. 81 ; Massachusetts Acts of 1911, c. 751, Part II, § 17; Rule No. 4 of the Massachusetts Indus-
trial Accident Board.

ADMINISTRATIVE TRIBUNALS 85

summons and attendance fee.1 Costs on appeal still play their unfortunate part except
under plans like that in Ohio, where in certain cases the commission itself under-
takes the appeal.2

§2

The defect in the traditional method of administering justice, of making as an abso-
lute condition precedent to all litigation the retaining of attorneys at prices which
. parties could not afford to pay, reached its most acute form in this field.

j\ ttoTTtCMS

7 , Several factors combined to create a thoroughly bad situation. It was

about 1880 that the great industrial expansion began, when all the ac-
. . cent of business was on production, on "speeding-up" output, and not

on safety. Employment in many industries became more hazardous than
military service even in time of war. Thousands of injured workmen, to secure the
redress vouchsafed by law, faced long and difficult litigation calling for the expendi-
ture of much money for expenses and lawyer's fees. This same commercial expansion
left its mark on the practice of law. Many of the largest and best offices gave up gen-
eral practice and engaged exclusively in business and corporation law. The charity
work which had always been a part of the older type of office was discarded under the
pressure of the new era.3

There was no place to which an injured workman could turn for assistance. To
meet the general demand caused by these changed conditions, the legal aid society
came into existence, but it was only a straw in a hurricane. It had little support, was
hopelessly inadequate to meet the need, and lacked the vision even to do its utmost, for
it actually declined to accept any personal injury cases. In fairness it must be added
that at this time legal aid work had only lukewarm support and a good deal of hostility
from the Bar, so that it feared to take accident cases lest it be accused of competing
with lawyers and have its slender support withdrawn.

As justice was organized and as law practice was conducted, there was no one to
help an injured workman. There was a void in the system. To fill the gap came the
contingent fee. The system of charging fees depending on the success of the litiga-
tion was the necessary result of the conditions which were allowed to exist. Without
doubt it was better than nothing. The man whose leg or arm had been cut off would
prefer to accept half of the amount awarded him by a jury than to receive nothing
through inability to get his day in court. Many honorable lawyers took cases on the
contingent basis, conducted their cases honestly, and charged as small a percentage
of the recovery as they could.

1 Massachusetts Acts of 1911, c. 761, Part III, § 8, as amended by Acts of 1914, c. 708, § 10 and Acts of 1916, c. 72.

2 See post, page 89.

3 Rowe: Joseph H. Choate and Right Training for the Bar, 24 Case and Comment (September, 1917), 264, see particu-
larly pagres 266, 272 ; 12 N. Y. Legal Aid Review, No. 4, p. 1.

86 THE REMEDIAL AGENCIES

Nevertheless, the system as a whole has been, and is, the greatest blot on the history
of the American Bar. There is little doubt that if a modern contingent fee agreement
had been offered to any judge a hundred years ago, it would unhesitatingly have been
declared illegal and void. The bar did not sanction it without a struggle,1 and the
courts resorted to fictions before they upheld it.2 Stripped of verbiage, and in actual
practice, the system is one whereby the lawyer gambles on the outcome of litigation.
If he loses his investment in one case, he must recoup out of his winnings in the next.
It is obviously inconsistent with any theory that the lawyer is a minister of justice;
he is an interested party to the litigation because he is betting on its outcome.
However much it might be glossed over, when the acid test was applied this truth
was judicially admitted. Contingent fees have been justified on the ground that only
by them could the poor obtain justice, but when a poor injured workman applied
for permission to sue in forma pauperis the court refused the petition, saying, " the
suit is carried on partially for the benefit of the counsel."3

The contingent fee system brought about a thousand abuses of its own. It attracted
undesirable persons to become members of the profession. Because the stakes were
high and the players essentially gamblers it induced the unholy triumvirate of lawyer-
runner-doctor conspiring together to win fraudulent cases. It has degraded expert tes-
timony and served as a cloak for robbery through extortionate fees. Unquestionably
it has done more than anything else to bring the bar into deserved disrepute.4 The
late Joseph H. Choate, always an optimist concerning the bar, had this to say of con-
tingent fees:5

"But the chief cause of detraction from our absolute independence and dis-
interestedness as advocates is that fatal and pernicious change, made several
generations ago by statute, by which lawyers and clients are permitted to make
any agreements they please as to compensation — so that contingent fees, con-
tracts for shares, even contracts for half the result of a litigation, are permissible,
and I fear not unknown. How can we wonder, then, if the community implicates
the lawyer who conducts a cause with the morale of the cause and of the client?
If he has bargained for a share of the result, what answer can we make to such
a criticism ? And how can we blame the community when it suspects that such
practices are frequent or common, and even sanctioned by eminent members of
the profession, if they confound us all in one indistinguishable crowd and refuse
to accord to any of us that strictly professional relation to the cause which the
English barrister enjoys? And how can courts put full faith in the sincerity of

1 The question of contingent fees came up when the Canons of Ethics were discussed. See 33 Am. Bar Ass'n R. 76
et seq.

s Thus it has been held that while an agreement to pay half of the amount recovered is void, an agreement to pay
a sum equal to half the amount recovered is valid. Wilhite v. Roberts, 4 Dana (Ky.), 172.

3 Boyle v. Great Northern Ry. Co., 63 Fed. 639.

4 Storey : Reform of Legal Procedure, page 53 ; Doerfler: Duty of the Lawyer as an Officer of the Court, 24 Green
Bag, 74, 76; 73 Ann. Am. Ac. Pol. & Soc. Science, 112, 167; Thompson: Expert Testimony, 23 Massachusetts Medical
Society Communications, Article XXI ; Burr: Extortionate Fees, 3 Am. Bar Ass'n Journal, No. 1, p. 52.

0 From an address on "The English Bar " before the New York State Bar Association in 1907. See Choate : American
Addresses (1911), page 308.

ADMINISTRATIVE TRIBUNALS 87

our labors as aids to them in the administration of justice, if they have reason
to suspect us of having bargained for a share of the result?11

The denial of justice, caused by this difficulty of the expense of counsel and by the
abuses growing out of it, was so clear in this class of cases that when the compensation
acts were adopted, it was hoped that the lawyer might be eliminated altogether.1 This
failed, as it was bound to fail, because the attorney's function, in all but limited
types of cases, is indispensable to our method of administering justice. But the com-
pensation acts and the industrial accident commissions have worked great changes.
A double process of limiting the need for counsel on the one hand and of supplying
counsel on the other may clearly be seen.2

Restriction of the attorney's function has been accomplished in several ways. In
lieu of writs, summonses, and declarations, there are notices of injury and claims
for compensation whose forms have been simplified and standardized. There are no
details of service of process, for the mails are used. Questions of jurisdiction and
venue have no importance, for one commission acts for the entire state. There are no
pleadings and no interlocutory proceedings worth mention. Trial lists and calendars
are not used; every case is assigned for hearing at a specific hour on a specific date,
and notice is sent by the commission to all parties. Thus all preliminaries up to the
point of trial, which in common law tort litigation required the services of counsel,
are performed either by the party himself or by a clerk of the commission.

The law itself is infinitely more simple. The whole question of damages, on which
many a lawyer has exercised his utmost ingenuity, is reduced to mathematical pre-
cision, and in a given case the precise award is determined by consulting a table
which a grammar school child could understand. The issue of liability is shifted
from the doubtful and contentious ground of negligence complicated by contributory
negligence, assumption of risk, and the fellow-servant rule, to injuries "arising out
of and in the course of the employment."

Although when a definition is widened it still has limits, so that marginal cases
arise in plenty to cause disputes, under the compensation plan thousands of cases are
so clearly within the law and the damages are so easily computed that settlements
are made automatically and as a matter of routine. These settlements are in the form
of agreements to pay a stated sum each week until disability ceases. They are all
checked by investigators of the industrial accident commission and are not binding
without its approval. Whereas under the former system an injured workman in set-
tling a claim was obliged either to employ counsel to advise him as to his rights and
damages, or else trust himself to the mercies of a usually pitiless and shrewd casualty
company adjuster, and was bound by any release he signed, now thousands of claims
are concluded promptly and accurately, with fairness guaranteed by the commission's

1 Storey: Reform of Legal Procedure, page 79 ; Parry: The Law and the Poor, page 298. Cf. Field v. Longden, 1902;

1 K. B. Div. 47, 66.

2 Cf. Report of New York Industrial Commission for 1916, pages 115, 118.

Cases Automatically

Cases wherein a

Settled and Approved

Hearing was Claimed

7,000

584

13,856

799

15,496

1,201

15,864

1,600

15,135

1,007

88 THE REMEDIAL AGENCIES

supervision, the entire process costing the employee not a cent.1 Statistics in Massa-
chusetts reveal how large a proportion of matters are thus settled.2

Period

July 1, 1912-November 30, 1913
December 1, 1913-November 30, 1914
December 1, 1914-November 30, 1915
December 1, 1915-November 30, 1916
December 1, 1916-June 13, 1917

Totals 67,351 5,191

This signifies that the compensation act plus proper administration has been
able in the large majority of cases to secure absolute freedom and equality of justice
to injured workmen. When it is remembered that seventy-five per cent of injured
employees earn less than fifteen dollars a week3 and would under the common law
system have been obliged either to settle at the insurance company's terms, or employ
counsel under an unfavorable contingent fee contract, or suffer a total denial of
justice, it can be appreciated that the present order of things is little short of a
revolution in the administration of the law.

Even if the case is not settled, the commissioners employ, as we have seen,4 the
method of conciliation where opportunity offers, so that a further number of cases are
brought to a fair conclusion speedily, and without requiring the services of counsel.5

As to cases which go to trial, the traditional functions of an attorney are first to
investigate and prepare the facts, second to prepare the law, and third to conduct the
trial according to the rules of procedure and evidence. At hearings before industrial
accident commissions the last function is rendered negligible. Rules of evidence have
been cast to the four winds,6 the commissions themselves are sovereign as to the pro-
cedure before them, and they are able to guarantee that no case is lost by technical
error in presentation. In the mechanics of putting parties on the stand and ques-
tioning them, a timid a" J ignorant workman would be at a disadvantage, but the
commissioner generally undertakes that responsibility for him. On the preparation
of the facts, the commission has its investigating staff. These investigators talk with
the witnesses, examine the locus, photograph the machinery, and file an impartial re-
port which generally covers all the basic facts. This is supplemented by the employ-

1 Report of Massachusetts Industrial Accident Board for 1913-14, Public Document No. 105 of 1915, page 20. See also
Report for 1912-13, No. 105 of 1914, page 24. Cf. Bulletin of the Industrial Commission of Ohio for December, 1917,
vol. iv. No. 13, p. 11, note ; Report of New York Industrial Commission for 1915, pages 24, 120 ; Indiana Industrial
Board R. (1916-17), page 3. All but 2.1 per cent of the cases were adjusted by agreement.

* These figures were furnished by Mr. Broderick, Chief Statistician of the Massachusetts Industrial Accident Board.
They are published in part in the 1913-14 Report cited above.

3 The percentage of injured employees in Massachusetts earning less than $15 per week is known to be 78 per cent
in 1913, 73.8 per cent in 1914, 72.9 per cent in 1915, and 72.8 per cent in 1916.

* See ante. Chapter IX, § 4, page 64.

8 Report of Massachusetts Industrial Accident Board for 1913-14, page 18 ; the Report for 1912-13 (page 25) shows
that 3000 claims were so adjusted, and that in 182 cases, even after hearing had been claimed, conciliation brought
about a settlement. Report of New York Industrial Commission for 1915, page 124; Ibid, for 1916, page 114.
8 8 Am. Bar Ass'n Journal, No. 1, p. 57. The Ohio Law is typical. 1 Supplement to Page & Adams Ohio General Code,
§§ 1466-91 (page 543).

ADMINISTRATIVE TRIBUNALS 89

ers detailed report of the accident, filed with the commission as required by law. The
medical evidence is contained in the impartial physician's report. In New Jersey a
compensation aid bureau has been established1 to investigate and certify the facts.
Thus the case is prepared without requiring the employee to engage counsel. In most
cases this preparation is entirely adequate as to the facts.

Legal issues are not so satisfactorily cared for. The investigators are not lawyers,
so that they may fail to appreciate legal difficulties and are incompetent to brief the
law. Until recently this gap has not been serious, for the hearing is essentially one
on facts, the substantive rules were simple, and there were few precedents. A real
difficulty, however, did exist on appeals. An appeal is almost always on a question
of law, and most commissions had no way of securing representation for employees
in the appellate courts except by cooperation with the legal aid societies. In Ohio,
in certain cases, the Commission itself takes the appeal for the employee2 and the
county prosecutor acts as counsel, and in New Jersey it is provided that counsel may
be assigned,3 but in most states when a case passes from the commission to the court,
it becomes subject to the traditional method of administering justice, which pays but
little heed to the inequality between the parties. Commissioners recognize this and
have grappled with it by incorporating in their findings points of law with authori-
ties in support.4 As this becomes part of the record it serves as a brief, but at best
it is a precarious way of ensuring the equal administration of law.

The statement that the industrial accident commissions wholly remove the need
for the attorney is not warranted. They are fallible, and they have made errors which
have been corrected through the investigation of counsel for the injured employee.5
There is an inherent limitation which appears in cases which present a sharp conflict
of testimony or raise a complicated question of law, and which call for a delicate
weighing of facts and arguments and decision thereon. Obviously the commission
cannot itself secure the evidence, brief the law, present the facts, and argue the case
with whole-hearted zeal and at the same time decide the case with judicial impartial-
ity. Where the functions are in conflict the judicial must be maintained, and as the
employee is unable to present his own case, if fairness is to be preserved resort must
necessarily be had to the attorney.

Rights of injured employees cannot be perfectly secured unless the commission is
able, in necessary cases, to ensure for them adequate representation. The same need
occurs in certain cases presented to small claims courts and domestic relations courts.
Inasmuch as it is neither economical nor necessary for each court and each depart -

1 New Jersey Session Laws of 1916, chap. 64.

2 1 Supplement to Page & Adams Ohio General Code, §§ 1465-74 (page 520). Cf. Report of New York Industrial Com-
mission for 1915, page 140 ; Ibid, for 1916, page 40.

3 New Jersey Session Laws o/1916, chap. 54.

4 For an excellent example see Travelers' Insurance Co. v. Bowden. No. 26571 Equity, in the files of the Massachusetts
Supreme Judicial Court for Suffolk County.

6 See 7 Cincinnati L. A. R. 6: similar cases in the files of the Boston Legal Aid Society are In re Charles Cellin, No. 3;
In re Benjamin Langer, No. 1017 and No. 4199.

90 THE REMEDIAL AGENCIES

ment to have its own staff of counsel, the ideal arrangement would be some central
legal agency, like a legal aid society, existing as a department of the administration
of justice, to which all courts and departments could refer such cases as needed the
special care of counsel.

In discussing court costs it has been pointed out that a reduction, when coupled
with proper court organization, did not mean an increased burden to tax-payers. So
under the compensation acts, although the industrial accident commissions perform
most of the services for which employees formerly have had to pay counsel, it does
not appear that any increased cost to the state results. By a careful computation of
the most accurate statistics obtainable it appears that the Commonwealth of Massa-
chusetts, by having so many cases taken out of the courts, was saved in 1914 a sum
of approximately SISO^OO.1 During the same year the entire appropriation for the
Industrial Accident Board was $87,400.2 In considering the reorganization of the
administration of justice with a view to making the position of the poor more equal
before the law there need be no bugaboo about prohibitive cost to the state or intol-
erable burden to the tax-payer.

§ 3
There cannot be much expansion of this sort of administrative tribunal as regards
injured workmen. Most states now have workmen's compensation acts. The recent
decision of the United States Supreme Court3 depriving longshoremen
. . and others engaged in maritime work of the benefit of state compen-
*' . . sation acts was promptly remedied by Congressional legislation.4 Em-

ployees in interstate commerce and sailors on American vessels5 are still
unprotected, and the compensation plan might well beextended to them.
It would not be surprising if justice by administrative tribunals were extended
into an entirely new field through the provision of a compensation plan for injured
passengers on railways, including street railways. If this were done, a second great
group of cases would be taken out of the courts, out of the sphere of the traditional
administration of justice, and placed under administrative commissions. This plan
has been advocated by eminent jurists.6 It has very recently received a thorough analy-
sis and presentation by Arthur A. Ballantine, of the Boston Bar.7 The idea was en-

1 Report of Massachusetts Industrial Accide7it Board for 1914-15, Public Document No. 105 of 1916, page 70.

2 Massachusetts Acts o/1914, c. 434.

3 Southern Pacific Co. v. Jensen (May, 1917), 244 U. S. 205; 37 Supreme Court Reporter, 524.

4 Public Acts No. 82 of the 65th Congress. Approved October 6, 1917.
6 Cf. 13 N. Y. Legal Aid Review, No. 3, p. 7.

6Taft: Administration of Justice, 72 Central L. Journal, 191, 197. In discussing the compensation plan Mr. Taft
included passengers. Storey: Reform of Legal Procedure, page 82. Mr. Storey develops the idea in some detail.
71 Mass. Law Quarterly (1917), 265; reprinted from the Harvard haw Review for May, 1916; see also, Ballantine:
Modernizing Railway Accident Law, Tlie Outlook for November 15, 1916.

ADMINISTRATIVE TRIBUNALS 91

dorsed by the Massachusetts Bar Association,1 and pursuant to its suggestion a re-
solve was introduced into the legislature in 1917 calling for the appointment of a
commission to investigate the feasibility of the project. The resolve was defeated on
several grounds,2 not the least of which was the opposition by a certain type of lawyer
which called it an "anti-lawyer"" bill. The objection is in reality one of the strongest
arguments for extending the plan to railway accidents. Elimination of the contingent
fee lawyer is not derogatory to justice; and the administrative method under which
lawyers are often unnecessary is a great step toward a better realization of freedom
and equality of justice.

The future development of this type of administrative tribunal perplexes all jurists.
It is undoubtedly true that some of its present advantages are due to the fact that
it occupies an extra-legal position3 and that temporarily it escapes from the limita-
tions of justice according to law and judicial justice. It is closely analogous to the
rise of equity,4 with the exception that instead of entrusting justice to priests in place
of judges, our recourse has been to laymen. New agencies enjoy a sort of hiatus when
rules and precedents are few, when the liberalizing spirit is strong, but this is tran-
sitory.5 It is certain that the administrative tribunals must ascertain and adminis-
ter their justice according to law, and it is likely that they will ultimately become
part of the regular judicial system.6

In any merger, and in developments in that direction, there is nothing to compel
a giving up of the use by administrative tribunals of investigators, impartial physi-
cians, simple procedure, simple forms, mail service, and the automatic settlement of
claims. These are permanent improvements. They conflict with nothing basic. If they
interfere with parts of the traditional machinery, such parts ought to be scrapped.
Administrative tribunals have much to teach judicial tribunals about promptness,
inexpensiveness, and limiting the attorney to clearly defined functions.

Under the industrial accident commissions the lawyer's services are neither entirely
limited nor supplied. As time goes on, this gap will steadily increase. The burden of
work will force the commissioners more and more back on their judicial function to
the exclusion of their work in behalf of employees. As the law becomes defined in a
thousand cases, precedents and rules grow up which require that each side be repre-
sented if the trial is to be fair. Under the older compensation acts this is already felt.
Commissioners are reversing their attitude and are preferring to have employees rep-
resented by counsel. With regard to the difficulty of the expense of counsel, the net
result of the administrative plan will probably be to provide machinery for automati-

1 2 Mass. Law Quarterly (1917), 61.

2 The great difficulty in this plan is the fixing of any schedule of damages which will fairly compensate injured
persons whose vocations and incomes vary infinitely.

3 Pound: Organization of Courts, American Judicature Society, Bulletin VI, page 4.

* Ibid., page 5.

B Pound : Justice According to Law, page 11.

* Ibid., page 42 ; Report of Dean Pound to the President of Harvard University for 1915-16, page 2.

92 THE REMEDIAL AGENCIES

cally adjusting many cases, and for conciliating a few more, but as to cases requiring
hearing or trial, the attorney will be increasingly necessary.

§4
The public service commissions represent a group distinct from the industrial acci-
dent commissions. In function, purpose, and in the reasons leading to their creation
they present points of difference. To meet the difficult questions of

e ner ae regUjatjon Qf public utilities, individual action by injunction or man-
. . damus was an unsatisfactory way to protect general public interests,

so that some administrative machinery became imperative. Further,
the issues involved in supervision of rates and service are essentially complicated
questions of fact calling for investigation rather than points of law requiring decision.
The function is much more administrative and much less judicial than is the case
with the accident commissions. The public service commissions came into existence
not as a revolt against justice according to law, but to fill a new administrative need.

The relation of such commissions to our problem is best illustrated by the United
States Interstate Commerce Commission.1 This Commission in its general work of
securing fair rates and adequate service through its investigators, experts, and attor-
neys, is incidentally bringing justice to millions of persons who could never afford
the expense of private litigation to secure redress in their own behalf. The Commis-
sion, however, does more than secure justice in general. It has power to investigate
and redress individual cases of overcharge and similar matters. It has erected a machin-
ery tending to secure more equal justice for the poor litigant against his powerful ad-
versary by its promptness, by no requirement of costs, and by the double process of
limiting the need for counsel to an extent and likewise, to an extent, supplying him.

The Commission gives much legal advice to shippers by correspondence.2 A small
shipper may thus be advised of his rights and, if he is unable to secure a settlement
with the carrier, he may complain informally to the Commission. This is placed on
the informal docket, and the Commission endeavors by correspondence, or otherwise,
to secure a satisfactory settlement.3 The Commission thus does exactly what the
private attorney, in analogous cases, does in negotiating for a settlement.

If this proceeding, which is akin to conciliation, fails, the shipper is instructed to
file a formal complaint. A standardized form is sent him, together with a copy of
the Rules of Practice before the Commission, which contains an offer4 to " advise any

1 For an excellent presentation of the advantages of the administrative machinery of the state public service com-
missions, see an article by Max Thelen, President of the California Railroad Commission, in The Utilities Magazine,
vol. iii. No. 1 (January, 1918), p. 3.

2 Thirtieth Report of the Interstate Commerce Commission (for 1916), page 2. In this year about 50,000 enquiries were
answered.

3 Twenty-ninth Report (for 1916), Part I, p. 1. For the year ending October 31, 1916, 6600 such complaints were
received.

4 Rules of Practice before the Commission (1916), Rule XX.

ADMINISTRATIVE TRIBUNALS 93

party as to the form of complaint, answer, or other paper necessary to be filed in any
proceeding." If the complaint is incorrectly filled out, notations are made and it is
returned. When properly filed, the Commission itself obtains service on the defend-
ant.1 The Commission itself investigates the facts through its investigators, a hear-
ing is had before one of its Examiners, and at the hearing rules of evidence are not
enforced and the procedure is informal.2 As the burden of proof is on the earner,3
in the simpler sort of dispute the shipper is entirely able to carry on his case without
aid of counsel. The facts are then certified to the Commission, which enters its find-
ing. If the shipper wins, and the railroad declines to pay, the shipper may take the
case to the federal courts without payment of costs,4 and if he is successful, he is
reimbursed for his attorney's fee.4

Among the cases of the poor, matters of this sort are a very small item. The work
of the Interstate Commerce Commission is valuable, however, as one more illustra-
tion of how much the courts could do toward securing a more equal justice by sim-
plifying procedure, eliminating costs, and particularly if they were equipped with
auxiliary administrative departments.

§5

In the five agencies and methods thus far discussed we have seen freedom and equality
of justice furthered by simplification of procedure which conduces to despatch, and
by elimination of court costs which, in actual operation, has not at all
J served to foment fraudulent litigation. With regard to the root diffi-
culty of the expense of counsel we have seen that small claims courts, conciliation,
and arbitration solve the problem by making the attorney unnecessary in such pro-
ceedings, and that domestic relations courts and administrative tribunals afford a
middle solution of rendering his services unnecessary in part and of supplying his
services in part. We now pass to a third group of agencies, dealing with cases from
which the attorney cannot be eliminated, which recognize this situation and frankly
undertake to relieve it by supplying the attorney, or persons to perform his functions,
without expense to the litigant.

1 Rules of Practice before the Commission (1916), Rule III.

2 All of the laws on this subject up to January 1, 1917, have been collected by the Interstate Commerce Commission
and published in separate form as 77ie Act to Regulate Commerce. See § 17, p. 36.

3 Ibid., § 15, p. 30.

4 Ibid., § 16, p. 33.

Chapter XIII
ADMINISTRATIVE OFFICIALS

A New Jersey act creating a bureau in the labor department to
assist injured employees ... is an interesting provision for state
aid to that class of litigants least likely to possess the initiative
or the money necessary to begin and prosecute an action in the
courts. Parkinson: Important Legislation during 191G.1

§1

THE distinction between administrative tribunals and administrative bureaus
or officials is not always clear. Substantially, the difference is that the adminis-
trative tribunal as part of its work exercises an important judicial function, it passes
. judgment on contested and disputed states of fact, applies the law to the
J facts as found, and enters an order accordingly, whereas the administra-

tive official exercises an executive function, he enforces the law, but if he secures evi-
dence of a violation, his only authority is to repair to a regularly constituted court
and ask for its judgment. Examples of the latter are insurance, tax, and labor com-
missioners. Both administrative tribunals and officials vary greatly in type and often
approach a point where it is impossible to distinguish them. Sometimes both are
united in one body as a state Board of Labor charged with enforcing the labor laws
and administering the compensation act. In their bearing on our problem it may be
said that the administrative tribunal is analogous to a court and the official to a
lawyer.

§ 2
The poor man may to-day obtain free legal advice and a certain amount of assistance
in divers branches of law by applying at the appropriate state departments. The in-
surance commissioner will advise him whether his policy of life or
fire insurance is in accordance with law and as to his rights there-

~ under. The tax commissioner will explain to him his obligations, if

Administrative j ,, . , 2 \ j ± u 1 • • • -n •

any, under the tax laws/ A deputy banking commissioner will m-

^ struct him as to the usury laws, the rates of interest permitted on

small loans, and the restrictions on assignments of wages given as security. In each
important port there is a United States Shipping Commissioner who advises seamen.3
He has authority, upon agreement of parties, to arbitrate disputes. In fact he has a
wider jurisdiction because almost invariably his informal recommendation as to pay-
ment of wages, deductions, discharge, and the like will be accepted by the captain

1 Professor Thomas I. Parkinson of the Legislative Drafting Bureau of Columbia University in his Review of Impor-
tant Legislation in the United States during 1916, 3 Am. Bar Ass'n Journal, No. 2, pp. 168, 172.

2 See Requirements of the Massachusetts Income Tax Law (1916), Bulletin No. 1 of the Income Tax Commissioner,
§ 15, p. 26.

s See United States v. The Grace Lothrop, 95 U. S. 527.

ADMINISTRATIVE OFFICIALS 95

of any American vessel. Immigration commissions are coming into existence which
give much legal assistance to newly arrived immigrants. The best illustration is
afforded by the California Commission on Immigration and Housing, which main-
tains a bureau of complaints, and does its best to adjust legal disputes in which im-
migrants are involved.1

The service afforded by these bureaus and officials includes advice and an attempt
to adjust controversies, but stops there. They do not render assistance in litigation.
Thus, if the insurance commissioner or the immigration commissioner finds that a
complainant has been wronged, and is unable to secure redress by negotiation, there
is nothing to be done except to refer him to some other official, or to a legal aid soci-
ety, or to a private attorney.2

§ 3
There is a growing number of administrative officials empowered to render direct
legal services in litigation. The New Jersey workmen's compensation bureau,3 after
its investigation, certifies the facts to the county court. This in fact oper-
. * . ates as a petition and starts the litigation. It goes no further, but the

. statute permits the court to assign counsel to carry the case on. The Min-

° nesota Department of Labor gathers facts in compensation claims and

is authorized by law4 to send its investigators into the district courts, where all deci-
sions are made, to aid and counsel any party.

In Virginia a recent statute5 gives the commissioner of agriculture supervisory
authority over licensed commission merchants. A farmer who is not paid for his pro-
duce may complain to the commissioner and obtain a hearing. If the facts warrant,
the commissioner is empowered to revoke the merchant's license and to bring suit to
recover for the complainant the money due him.6 Similarly, the supervisor of small
loans in Massachusetts has authority to entertain complaints for violations of the law
regulating interest charges and the small loans business in general, to conduct hear-
ings, and to bring actions in the courts for violations of law.7 In most cities there
are legally constituted boards of health to which a person can complain as to the
unsanitary condition of his neighbor's backyard, and the board will itself institute
proceedings, thereby saving the party the expense of bringing a private suit to abate
a nuisance.

1 Second Annual Report of the California Commission on Immigration and Housing (1916), pages 95, 108, 117 a.
In 1915 legal advice was given in 388 cases and 174 matters were adjusted. Massachusetts has very recently created
a similar Commission, which has its own attorney to assist immigrants.

2 See Ibid., pages 98, 103, 117 a.

3 New Jersey Session Laws of 1916, c. 54.

4 Fourteenth Biennial Report of the Minnesota Department of Labor for 191Sand 1914, page S9. The precise num-
ber of cases in which court assistance is given is not known. It is estimated at fifty cases a month.

6 Virginia Acts o/1916, c. 77.

6 Parkinson: Re view of Important Legislation in the United States during 1916, 3 Am. Bar Ass'n Journal, No. 2, 172.

7 Massachusetts Acts 0/1911, c. 727.

96 THE REMEDIAL AGENCIES

§ 4
The most striking example of state aid to parties in private litigation is afforded
n 11 • s ky the Massachusetts Labor Commissioner in his authority to enforce
o ec ion j payment Qf wages> 'pne plan, as it has been built up, is so unique and
*\ .™ has been so successful that it deserves thorough presentation.1 The
. Commissioner is the executive officer of the State Board of Labor and

• " Industries,2 which has general supervision over the labor laws regulat-

ing hours of work, sanitary provisions, safety appliances, employment of minors, and
the like.

Since 1886 there has existed in Massachusetts a law requiring corporations to pay
wages weekly and providing for criminal proceedings against employers for viola-
tions.3 In 1895 the law was extended to include individual and partnership employers.4
Before making this important amendment the legislature asked the Supreme Judi-
cial Court whether such a law would be constitutional. The Court filed an opinion that
the law would be valid.5 Although there are contrary decisions in other states, the
point of constitutionality has never been raised in an actual case.6 The original law
has been amended nearly every year, but always in the direction of widening its oper-
ation and including within its provisions additional classes of employees.7 The scope
and plan of the law appears from its text : 8

"Every person, firm, or corporation engaged in carrying on a hotel in a city, or
a factory, workshop, manufacturing, mechanical, or mercantile establishment,
mine, quarry, railroad or street railway, or a telephone, telegraph, express or
water company, or in the erection, alteration, or repair or removal of any build-
ing or structure, or the construction or repair of any railroad, street railway,
road, bridge, sewer, gas, water or electric light works, pipes or lines, shall pay
weekly each employee engaged in his or its business the wages earned by him to
within six days of the date of said payment, but any employee leaving his or her
employment, shall be paid in full on the following regular pay day ; and any
employee discharged from such employment shall be paid in full on the day of
his discharge. . . .

"Whoever violates the provisions of this section shall be punished by a fine of
not less than ten nor more than fifty dollars."

Enforcement of this law was first in the hands of the state police, and in 1912 was
transferred to the Labor Commissioner.9 The rigor of the law is self-evident:

1 For a commentary on the Massachusetts law, and similar laws of other states, see United States Bureau of Labor
Statistics, Bulletin No. 229 (1918), pages 70 et seq.

2 Massachusetts Acts o/1912, c. 726, § 2. See United States Bureau of Labor Statistics Bulletin No. 229 (1918), pages
70, 73.

3 Statutes of 1886, c. 87. 4 Ibid., 1895, c. 438. ° Opinion of the Justices, 163 Mass. (1895) 589.
e See Commonwealth v. Dunn, 170 Mass. (1898) 140.

7 Revised Laws of 1902, c. 106, § 62; Acts of 1909, c. 514, § 112; Acts of 1910, c. 350: Acts of 1911. c. 208; Acts of 1914,
c. 247; Acts of 1916, c. 76; Acts of 1916, c. 229.

8 General Acts of 1916, c. 229.

9 Acts of 1912, c. 726, § 5 ; Acts of 1916, c. 14.

ADMINISTRATIVE OFFICIALS 97

"The state board of labor and industries may make a complaint against any
person for a violation of the provisions of the preceding section. Complaints for
such violation shall be made within three months after the date thereof, and,
on the trial, no defence for failure to pay as required, other than the attach-
ment of such wages by the trustee process or a valid assignment thereof, or a
valid set-off against the same, or the absence of the emplovee from his regular
place of labor at the time of payment, or an actual tender to such employee at
the time of payment of the wages so earned bv him, shall be valid. The defend-
ant shall not set up as a defence a payment of wages after the bringing of the
complaint."

The Commissioner has two deputies, twenty-four inspectors, a chief clerk, and an
attorney on his staff. Whereas most labor commissioners can only try conciliation,
and if that fails refer the employee to a legal aid society * or leave him without any
assistance, it is apparent that the Massachusetts Commissioner has the legal power
and equipment to assist unpaid wage-earners as far as is necessary. The proceeding
being under the criminal code, its process is summary, there are no costs, and the
attorney is supplied by the Commission without expense to the employee. The ma-
chinery is so effective that it seldom has to be used. Wholesale non-payment of wages
does not exist in Massachusetts as it does elsewhere. Unfortunately, the statistics of
the work done are available only since 1915. They show:

Year

Number of Wage
Complaints

Adjusted by
Legal Department

Sums
Collected

Prosecuted
in Court

1915 2

896

698

$3,192.22

198

1916 s

1,746

1,586

12,374.61

160

1917*

—

1,432

8,885.32

The effectiveness and success of this plan are well attested by the fact that rela-
tively few persons apply to the legal aid society in Boston for assistance in collect-
ing their wages. Of those that do apply the larger number are domestic servants
who are not included within the act, or persons whose claims are more than three
months old and so barred by the statute. Comparative statistics for 1916 make this
clear :

Aid Organization in

Total Cases

Wage Claims

Per Cent

Boston

2,608

314

Chicago

10,697

3,134

Dallas

1,464

476

Kansas City

6,202

2,118

Los Angeles

2,571

1,938

Newark

2,152

804

New York

41,646

15,922

1 Cf. Fourteenth Biennial Report, Minnesota Department of Labor (1913-14), pages 135, 201; 8 Pittsburgh L. A. R. 17.

2 Th ird Annual Report of the State Board of Labor and Industries, Public Document No. 104, of 1916, page 20. These
figures cover only the last five months of the year.

3 Fourth Report, Ibid., Public Document No. 104 of 1917, page 26.

4 From January 1 to September 30. These figures were furnished by Miss Andrews of the State Board of Labor and
Industries.

98 THE REMEDIAL AGENCIES

In 1911 California attempted to provide the same machinery for wage collections,
by passing the weekly payment law,1 with criminal penalties for violation, and by
placing its enforcement in the hands of the State Bureau of Labor Statistics. This
law, on November 23, 1914, was held unconstitutional on the ground that it
conflicted with the constitutional prohibition against imprisonment for debt.2 The
Board, like most commissions, has a general authority to summon in parties, and
under that provision it has proceeded to aid unpaid wage-earners to the best of its
ability. It has rendered great legal assistance, as appears from its statistical reports.3

Year

Claims Filed

Claims Collected

Amounts Collected

1912

1,899

1,292

$24,445.59

1913

3,573

2,213

36,450.69

1914

7,330

4,904

110,911.93

1915

9,320

5,249

153,804.20

1916

10,167

5,672

179,132.22

The higher percentage of claims enforced during the first two years as contrasted
with the last two years is an immediate reflection of the court's decision in 1914,
which necessarily deprived the Board of its final power. To-day, if an employer re-
fuses to pay, the Board cannot institute litigation for the employee, it can only refer
him to the Public Defender in Los Angeles and the Legal Aid Society in San Fran-
cisco, and elsewhere to no one.

That the Board is able to accomplish as much as it does is a tribute to the effec-
tiveness of the method of conciliation under official conduct. The Board is like a poor
man's court,4 without power to render a judgment or to enforce its own finding. It can
secure a result only through the mutual consent of the parties, which is conciliation.

The complexity of government in the modern state will undoubtedly call for a steady
development of the administrative arm. As officials, bureaus, and commissions are
„ , _. necessarily added, there will be an increase in the fields of law as to

7 , which poor persons can secure legal advice and certain preliminary Wal

" assistance without consulting private attorneys.

Of more immediate importance is the possibility of extending the Massachusetts
plan for the collection of wages. The poor man's case more often relates to wages
than to anything else. A state board empowered to use the summary criminal process
is, in many respects, of more assistance than the small claims court. The plan, if it
could be extended, would probably stop non-payment of wages almost entirely, but

1 See Statutes of 1911, page 1268.

1 Ex parte Crane, 145 Pacific R. 733. This is a decision of the District Court of Appeals for the First District. No final
appeal to the Supreme Court was ever taken. The constitutional provision is Article I, § 16.

8 See Seventeenth Biennial Report of the California Bureau of Labor Statistics for 1916-16, pages 9-16; also Six-
teenth Biennial Report, Ibid., page 16.

4 Seventeenth Biennial Report, Ibid., page 9.

ADMINISTRATIVE OFFICIALS 99

the constitutional prohibition against imprisonment for debt, which in most aspects
is wholly desirable, stands as a barrier.1 It is likely that the states would refuse to
amend that provision; and it is certain that it could only be done after a long edu-
cational campaign. The only warrantable conclusion is that while here and there the
idea may be adopted and while it serves to exemplify one strikingly successful solu-
tion for an important part of the problem, no general reliance can be placed on it
as the best immediate solution of the nation-wide difficulty of the poor in collecting
their wages through the processes of the law.

1 For a recent ease in Arizona holding that criminal process to enforce payment of wages is valid as against cor-
porations, see Arizona Power Co. v. State (1917), 166 Pacific R. 276.

Chapter XIV
ASSIGNED COUNSEL

Kent : This is nothing, fool.

Fool: Then 't is like the breath of an unfee'd lawyer, you gave me
nothing for 't. King Lear, Act I, Sc. 4.

OF the nine agencies securing a more equal administration of the laws which are
under consideration, the only one which is not of recent origin is the system of
assignment of counsel to indigent persons in civil and criminal cases. This, together
with the provisions for bringing suits in forma pauperis, constitutes the sum total of
the machinery provided by our traditional administration of justice for safeguard-
ing the rights of poor persons.

This matter of the assignment of counsel by courts to represent persons unable to
employ their own attorneys raises several questions of the highest importance. A de-
termination of the law on which the system is built answers the now disputed issue
as to the relationship between the bar and legal aid organizations; on the workability
and feasibility of the plan depends in large measure the argument about the public
defender. These matters must be relegated to their appropriate chapters.1 In this chap-
ter our concern is to examine how far the difficulty of the expense of counsel has been
solved by the assignment method and, on that basis, how far it ought to be incor-
porated into any thorough plan designed to remedy the existing inequalities.lt is con-
venient to divide the discussion into assignments in civil cases, the divorce proctors,
and assignments in criminal cases.

§ 1

The system of assignment of counsel looms large in the books, but has amounted to

very little in practice. Analytically, it would appear that this power of the courts to

. . , _ assign attorneys to assist poor persons in cases where representation

Assignment of ° J : F r /

° .j . was necessary was a complete answer to the difficulty ot the expense

_. „ _ of attorneys. Practically, it has been no solution at all.

In addition to the inherent power of courts to assign attorneys,
on the general theory that they are agents of the court and ministers of justice, there
are statutes in many jurisdictions expressly conferring this authority on the judges,
to be used in their discretion. Following the ancient precedents, the authority is gen-
erally contained in the laws permitting suits in forma pauperis.2 For some reason
this power seems never to have been used. Judges who are thoroughly familiar with
the practice in the New York and Chicago municipal courts state that within their

1 See post. Chapter XXI V. Legal Aid and the Bar, page 226; and Chapter XV, The Defender in Criminal Cases, page 111.

2 Examplesof these statutes are New York Code of Civil Procedure, §§ 460, 463; Hurd's Revised Statutes of Illinois
(1906), page 555; Missouri Annotated Statutes (1906), § 1645 : Carroll's Kentucky Statutes, § 884.

ASSIGNED COUNSEL 101

recollection counsel have never been assigned in civil cases. When counsel for the New
York Legal Aid Society petitions in behalf of a client for leave to sue without pay-
ment of costs, the petition contains a prayer that he be assigned as counsel, and this
is granted as a matter of course; but the rule that the courts of their own initiative
do not designate members of the bar to assist needy suitors is not controverted by
any other evidence. The system is so thoroughly in disuse that in many quarters its
very existence is denied. The large majority of attorneys do not realize that there is
any authority which can require them as a matter of duty to give their services with-
out charge to poor persons.

It is not easy to state with precision why a system so deep-rooted in the history
of our legal institutions should both in England and in the United States fall into
such neglect. Doubtless it is in part due to the general failure to realize how the
changed conditions of life had put the employment of counsel beyond the reach of
so many persons. Probably even more important has been the fact that the system con-
tains a certain unfairness. As the bar has developed, most of its members have been
obliged to work hard to earn their living. To force such an attorney to undertake
litigation without remuneration seemed a hardship which a court naturally would
hesitate to impose. The highest courts in Indiana and Wisconsin have considered
the unfairness so great as to constitute deprivation of property without due pro-
cess of law, and have declared unconstitutional statutes requiring attorneys to serve
under assignments without compensation.1 In this situation is revealed the great weak-
ness of the plan. If an attorney, obliged to earn his livelihood by practice, is com-
pelled to serve a poor person without hope of reward, all the probabilities of human
nature are that he will neglect that case in favor of cases brought by paying clients.

Because of this fact and of our experience, one would be tempted to cast the as-
signment plan aside and to hold that no good could come from it; but no such sum-
mary dismissal is justified, for elsewhere it has been made to operate with great suc-
cess. The legal aid societies in Philadelphia, Duluth, and Los Angeles2 have built up
very careful systems under which they assign to outside attorneys such cases as they
are unable or forbidden by rule to undertake. They have had no difficulty in obtain-
ing a sufficient number of attorneys to serve, and by carefully selecting their list and
by a slight amount of supervision they have been able to make the plan work sat-
isfactorily to all parties concerned. What the legal aid societies, informally and with-
out authority, can do ought not to be impossible for the courts.

The entire legal aid system in Scotland and France has for centuries been operated
by a combination of the bench and the bar using the assignment plan as part of the
in forma pauperis proceeding.3 In Scotland about two thousand persons a year apply

1 Webb v. Baird, 6 Ind. 13; Dane County v. Smith, IS Wis. 685.

2 The Los Angeles plan is described in detail in the San Francisco Recorder for September 8, 1914, and in 5 Journal
of Criminal Law and Criminology, 601.

3 This subject of judicial legal aid is considered in further detail post in Chapter XXV, A More Equal Administra-
tion of Justice, page 246.

102 THE REMEDIAL AGENCIES

for this assistance; the assignment of counsel goes on in daily practice, as a glance
at the reports shows.1 In England, where there has recently been a great awaken-
ing to the inability of the poor to utilize the machinery of justice, the assignment
system is being made the chief reliance in the comprehensive reform undertaken by
the courts.2 In 1913 the English High Court of Judicature, after conferences with
the bar, issued a series of rules making provision for poor persons' cases and calling
for the formation of lists of solicitors and counsel who would accept assignments.
Despite the complications resulting from the war, the most recent information is to
the effect that the plan gives promise of being successful.3 Before their numbers were
depleted by enlistments, there were three hundred barristers and five hundred soli-
citors throughout England who stood ready to undertake assigned cases.4

While there are drawbacks to the assignment idea, it is too valuable to be given up
altogether. In America it ought to be revived. There should be such a lively sense of
obligation on both bench and bar that no civil suitor should be forced by poverty to
do without counsel in cases requiring skilled preparation and presentation. When-
ever such cases appear the judges should feel at perfect liberty to assign the cause
either to the legal aid organization or to other counsel. Although in most respects an
organized and specialized legal aid bureau is far more efficient than any assignment
system, the latter can be made an effective auxiliary, and a last safeguard, in any
complete plan for securing rights to the poor.

§ 2
In some states there are attorneys, known as divorce proctors, who intervene in divorce
matters under assignment from the court. This work is done to safeguard the interest

of the state, not to assist needy parties, and the practice is mentioned
. ^ here merely to establish the fact. It is valuable because it affords one

more precedent for the state's concerning itself and lending its as-
sistance in matters that are generally regarded as "private" litigation.

The idea originated in England, where the office of King's Proctor was created to
prevent collusion in divorce cases.5 The first attempt to establish a similar position
in America was made in New York in 1901, but failed.6 In a few states this function
is performed either under statute as in New Jersey 7 and the District of Columbia,8 or

1 The Scotch system is presented in 105 Contemporary Review, 569, 562, and in 47 Law Journal, 49 ; for cases arising
out of this practice see Ross v. Ross, 1 Scots Law Times (1914), 299: McGregor v. Kinloeh, Ibid., 4T4.

2 Rules dated April 28, 1913, and published in the 1914 Rule Book. See Order 16, IV, §§ 22-31.

3 Law Times for March 18, 1916. 4 49 Law Journal (1914), 362.

6 For the acts see 23 & 24 Vict. c. 144, § T; 36 & 37 Vict. c. 31 ; for a discussion see Halsbury : Laws of England, vol.
xvi, tit. Husband and Wife, §§ 1125-1132.

6 For the bill see State of New York Senate Bill No. 82, reprinted No. 837; see also printed report of the Committee
on Amendment of the Law of the New York City Bar Association, dated March 14, 1901.

7 Biddle: New Jersey Divorce Practice (2d ed.), page 134.

8 District of Columbia Code, § 982; for a similar statute in Massachusetts see Acts O/1907. c. 390.

ASSIGNED COUNSEL 103

simply under the general authority of the court to assign counsel as in Denver and
Kansas City.

Generally the duty of such an officer is to appear in default divorce cases to ascer-
tain whether the proceedings are fraudulent and whether the defendant had proper
notice. Indirectly this may occasionally serve to benefit some poor person, but the
design is simply to protect the interest of the state that divorces should not be
granted except for valid cause.

§ 3

Assignment of counsel in criminal cases is as common as it is uncommon in civil

cases. In the federal courts and in the majority of the state courts of general criminal

jurisdiction the law provides that the court must, on request, ap-

& J point counsel to represent the accused. It is the universal rule that

. no man is permitted to stand trial for murder unless he has counsel

Criminal Cases , , . T ,, . £ ■> , . 1

to represent him. In the interior courts counsel are not assigned.

In most states the right to counsel is guaranteed by the constitution. Also the

Sixth Amendment to the Constitution of the United States provides:

"In all criminal prosecutions the accused shall enjoy the right to a speedy and
public trial; ... to have compulsory process for obtaining witnesses in his favor;
and to have the assistance of counsel for his defence."

In a number of states the constitutional provision has been supplemented by statu-
tory enactments giving express power to the courts to assign counsel.1 The systems
in vogue vary infinitely. In some states counsel are paid, in others not. Some courts
assign counsel in all matters, others only when requested.

The general statement is warranted that in criminal matters the courts and the
bar have viewed their duty in an entirely different manner than in civil cases. The
power of assignment and the duty to serve are clearly established. That the courts
have acted on their own initiative and that the assignment practice is regularly
established is due to the fact that the injustice of requiring a person to present his
side of the story in a criminal matter without the advice of counsel is much more
apparent than in civil controversies. When liberty is at stake, the desire that there
should be fair play is more easily aroused.

It might appear, therefore, that we might confidently look to the assignment system
to secure equality before the law at least in the more serious criminal cases. Unhap-
pily this is not the case. The truth about the assignment system in criminal cases is
that as a whole it has proved a dismal failure, and that at times it has been worse
than a failure. Because of this breakdown, there has been sweeping over the country
during the past five years a movement, commonly known as the public defender move-

1 Thus see New York Code of Criminal Procedure, § 460.

104 THE REMEDIAL AGENCIES

ment, which is probably destined to supplant, or radically alter, the assignment prac-
tice. The details of the failure of the assignment system in criminal cases are so inex-
tricably bound up with the discussion about the public defender that they can best
be considered in that connection in the next chapter.

It must be recorded that the traditional administration of justice failed utterly
to make the assignment system — the only machinery it provided — any kind of a
satisfactory solution for the inequality caused by the inability of the poor to pay
the fees of attorneys. In civil cases, the plan fell into disuse, so that legal aid organ-
izations were found necessary to fill the gap in the machinery of justice. In crimi-
nal cases, use by the courts, through lack of supervision, degenerated into abuse
by attorneys, so that the public defender, which is only another name for legal aid
in criminal cases, was required to supplant a part of the machinery that failed to
perform its function.

Chapter XV
THE DEFENDER IN CRIMINAL CASES

In criminal cases, the defence of the poor and destitute is a neces-
sary obligation devolving upon the county, and to the extent of
providing counsel for them the court is agent for the county. Hoic-
ard County Commissioners v. Pollard.*

HERE for the first time we are confronted with the question of the position of
the poor before the criminal law. Thus far we have dealt almost exclusively
with the law on its civil side, and with agencies designed to secure more equal rights
in the bringing and defending of civil matters. It is the object of this chapter to
examine the administration of justice on its criminal side, to see how far it guaran-
tees freedom and equality to poor persons accused of crime, and to determine what
betterments may be made.

In recent years our criminal law and procedure have been subjected to violent and
persistent attacks. In no other field has the cry of one law for the rich and another
for the poor been more exploited or more thoroughly believed. The proceedings in
certain notorious trials of rich men for serious offences have aroused indignation and
served to degrade all law in the opinion of hosts of persons. There is something dra-
matic about criminal trials which excites popular imagination and focuses public
attention on the criminal rather than the civil law. The new office in criminal cases,
generally called that of public defender, has had more written about it and is more
generally known than all the other remedial agencies combined. There being a wealth
of discussion,2 our problem here is not so much one of simple exposition, as it has been
in earlier chapters, but rather one of analysis. This is particularly necessary because
much of the discussion thus far has been at loggerheads. It has not settled anything
because frequently the essential issues have been overlooked or confused and the close
relation between this particular problem and the whole problem of injustice to the
poor, between the defender in criminal cases and the other remedial agencies, has not
been observed.

The term "public defender" is itself a source of confusion because its meaning has be-
come ambiguous. The office of the first defender in Los Angeles was created by stat-
ute and supported by the county treasury, so that "public defender" at once acquired

1 153 Indiana, 371, 372.

2 The best arguments for the agency are Wood : The Place of the Public Defender in the Administration of Justice
(1914), and Mayer C. Goldman's book. The Public Defender (1917); contra. Fifth Report of the Law Reform Com-
mittee of the New York City Bar Association on The Necessity and Advisability of Creating the Office of Public
Defender (1916), and Majority Report of Sub-Committee on Public Defender of the Committee on Courts of Crim-
inal Procedure of the New York County Lawyers' Association, which was published in Bench and Bar, n. s., vol. ix,
p. 809. These adverse reports are discussed in the Minority Report published in 6 Journal of Criminal Law and
Criminology (1915), 660: and in 6 Pjid. 18. Citations to the most helpful of the other articles are made in following
pages.

106 THE REMEDIAL AGENCIES

the connotation of a public official paid at public expense. However, when a private

attorney in Houston offered his services to poor persons accused of

. * crime, the press entitled him "public defender." The New York or-

J ganization, being financed bv subscription, consciously took the name

of Voluntary Defenders Committee, but the man in the street knows it only as the
"public defender" office. Articles that condemn the public defender as unnecessary
and then praise the voluntary defender1 have bewildered most readers and, what is
worse, they have side-tracked the discussion.

In the hope of avoiding these pitfalls, the words "public" and "private'1 will be
eliminated from this chapter. The official or agency under discussion will be called the
defender in criminal cases, or, more simply, the defender.

The fundamental issue is whether our administration of justice is unfair to the
poor accused of serious crimes, so that some agency for their better protection is re-
quired. In their bearing on that question all the defender organizations which have
been established may be considered together, for in function they are all identical.
The subordinate problem of whether they should be supported publicly or privately
has interesting legal and political aspects, but as it is precisely the same issue which
must be faced later in discussing public versus private legal aid organizations,2 it, to-
gether with other collateral matters, will be relegated to the appropriate place in the
subsequent chapters on legal aid work.

This substantial identity of the defender and the legal aid organizations is not real-
ized. Well-informed writers have treated them as distinct agencies far removed from
each other, so that a second confusion has resulted. Reports have been made that
defenders are not necessary, but recommending that legal aid societies extend their
assistance in criminal matters. This is tracing a circle around the question without
answering it. To advise a man who is debating whether he requires a lawyer or not
that he should not have lawyer A because he needs no attorney, but that it would
be well for him to secure lawyer B, does not resolve his main doubt. The distinction
arose from the historical fact that legal aid societies generally confined themselves
to civil matters. Analytically the two agencies are as alike as two sessions of the same
court; both were called into being by the same general causes, both exist for the same
purpose, and both stand in the same relation to the administration of justice. While
they have operated in different fields, evolution is fast breaking down this distinction,
for many legal aid organizations are giving defence in criminal cases, and the defender
agencies are giving their aid in civil cases.

Finally, it is necessary to distinguish between that part of criminal law which deals
with serious crimes such as murder, burglary, larceny, assault and battery, and that
part which is concerned with relatively trivial matters such as selling without a li-
cense, violations of the road law, of the building or sanitary codes, in short, public

1 For example see an article in the New York Evening Sun for March 26, 1917.

* Chapter XIX, Types of Legal Aid Organizations, § 6. Public versus Private Organizations, page 180.

DEFENDER IN CRIMINAL CASES 107

torts, and with such lesser crimes as drunkenness, street- walking, and vagrancy. In
a rough way the line of cleavage is between the inferior courts and the superior
courts of general criminal jurisdiction. The defender is concerned primarily with the
more serious offences and with the defence of persons in the superior criminal courts.
The following discussion deals with that field. There are defenders in some inferior
courts, but they stand on quite a different footing and their consideration will be
taken up in a separate section.

Whether the defender in criminal cases is necessary to secure equal justice to poor

„. . persons accused of serious crimes depends on the answers given to

1 he Argument ,, ,, °

° these three questions:

1. Do we believe that persons accused of the more serious crimes should have
adequate representation ?

2. If so, does the existing law and practice secure such adequate representation ?

3. If the existing system is inadequate, is the defender a sound plan for securing
proper representation ?

The first question answers itself. When our general principle of the right of ac-
cused to have counsel is combined with the principle of freedom and equalitv of
justice, the conclusion is inevitable. Nowhere has any one openly declared that poor
persons in serious criminal cases should be left without adequate representation. Such
a claim would be tantamount to arguing for a return to the harsh English criminal
law, as it existed prior to the American Revolution, forbidding accused persons to
have the assistance of counsel. In its effect on the individual poor person standing
accused, in its effect on the administration of justice, and in its political effect there
is no distinction between precluding an indigent by law from having counsel and
erecting a system which in fact precludes him from obtaining counsel. There is
unanimity of opinion that the administration of the criminal law should guarantee
that no one shall be convicted of a serious crime without a fair trial, and without
adequate representation.

§ 3

In weighing the fairness of the existing system there are two half-truths which have

served too often to tip the balance, but which must strictly be ruled out of account

. because they beg the question and prejudge the issue. The first is the

widespread impression that people are not arrested unless they are

° ** guilty; l that when the blue-coated officer of the law takes a man into

custody, there "must be something in it." The second is that too much protection

1 Cf. 73 Ann. Am. Ac. Pol. & Soc. Science (1917). 198.

108 THE REMEDIAL AGENCIES

is afforded already because the guilty sometimes escape conviction. A sound judgment
cannot be predicated on such biased premises, but must be arrived at from an examina-
tion of what protections are actually accorded poor persons accused of crime.

Eight distinct protections may be discerned in our present administration of crimi-
nal law. Stated in the order of procedure they are: (1) at the preliminary arraign-
ment a case against the accused must be made out; (2) if he is held, the district at-
torney reviews the case and may, if the evidence is insufficient, dismiss or nol pros
the complaint; (3) thereafter the grand jury deliberates and will not indict except
for cause shown; (4) an investigation is made by an impartial probation staff; (5) at
the trial the judge guards the defendant's rights; (6) the law lends its assistance by
presuming innocence and requiring proof beyond reasonable doubt; (7) the prose-
cuting attorney is a judicial official, so that in theory he is interested only in the
whole truth and thus acts for the defendant; (8) if persons are too poor to employ
counsel, provision is made for assigning counsel in their behalf.

This last is the crux of the situation. The other seven do not of themselves afford
adequate safeguards. Standing alone and without counsel for the accused to call
them into action, they would be of doubtful efficacy. This is because they are quali-
fied, not absolute, protections. Singly or in combination they provide no sure test
of guilt or innocence. They were never designed for that purpose. They are useful in
winnowing out the clearer cases of innocence, but all other cases pass beyond them to
a final determination by jury verdict. Through them many innocent persons have
been released, but likewise through all these seven stages have gone many cases in
which innocence did not appear until it was brought out by counsel for the defence
at trial.

A brief review shows these statements to be true and why they are true. The pre-
liminary hearing before a magistrate is intended to determine only whether the ac-
cused is so palpably innocent as to be entitled to immediate release, or whether there
is sufficient evidence to hold him for further investigation and action by the grand
jury, in technical language whether there is "probable cause." Not only does the
law expect persons, if there is any sufficient evidence, to be held, but the magistrates,
particularly where the charge is serious, hesitate to free a man if there is any evi-
dence against him and incline to pass the responsibility on to the higher court.1 At
these hearings no counsel are assigned.

In New York in 1914, of 13,327 men and women arraigned for serious offences,
7088 were held for trial. That forty-seven per cent were discharged demonstrates the
need for this protection. Further, it proves the falsity of the generalization, based on
a lack of understanding as to how easily the organized power of society can be started
in pursuit of an individual,2 that most persons who are arrested are guilty. The fair-
ness of our existing system cannot be supported by lightly assuming that it deals

1 5 Journal of Criminal Law and Criminology, 661; 6 Ibid. 21 ; Train : 77ie Prisoner at the Bar (2d ed. 1915), page 66.
* Annual Report for 1914 of the New York City Magistrates' Courts, page 150. Statistics from 1905 to 1914 are given.

DEFENDER IN CRIMINAL CASES 109

onlv with criminals who deserve no protection, but must depend on the provision it
makes for an impartial determination of guilt or innocence after a full hearing at
which both sides are adequately represented.

The second protection is the review by the district attorney. This is aimed pri-
marily to ascertain whether the state can make out a case. It does not purport to be
a thorough review of both sides.1 The district attorney cannot know all the facts
favoring the accused, for rare indeed is the prisoner who will confide in the man who
is to prosecute him. Similarly, the grand jury hearing is ex parte. Neither the ac-
cused, nor his counsel, nor his witnesses are heard.2 Their presence is prohibited. The
proceeding is summary — seven minutes per case is the average deliberation of the
grand jury in New York — and it is of so little value for any purpose that its abo-
lition is seriously considered.3

In jurisdictions where a probation staff is attached to the criminal courts its
investigation is unquestionably impartial. But it is an enquiry into the prisoner's
personal history, past record, associations, and environment (of importance in assist-
ing the court to fix a just sentence) rather than into the facts constituting the crime
charged. The probation officer does not testify at the trial; his lips are sealed until
after verdict.4

At the trial the judge presides over the proceedings and guarantees, so far as it is
within his power, that they are conducted fairly and in accordance with the prisoner's
legal rights. It was long maintained in England that this was a complete protection
in itself, so that the accused needed no counsel.5 In practice, however, it proved demon-
strably inadequate and was abandoned in 1903.6 This safeguard through judicial
control is in reality very limited in scope. It is not because our judges are dishonest,
unwilling, or incapable. They desire to follow Bacon's adjuration:7

"A judge ought to prepare his way to a just sentence, as God useth to prepare
his way, by raising valleys and taking down hills; so that when there appeareth
on either side an high "hand, violent prosecution, cunning advantages taken,
combination, great power, great counsel, then is the virtue of a judge seen, to
make inequality equal, that he may plant his judgment as upon an even ground."

The trouble is that under our existing system the judge has so little opportunity
to " make inequality equal." His hands are so much tied that he is more of an aloof
umpire than an active protecting official.8 He rules on objections made by counsel,
but does not himself interpose objections to testimony. Except in the federal courts
he is forbidden to express any opinion or to instruct the jury on the facts. In an ob-

1 The Office of the Public Defender (Los Angeles, 1914), page 8.

3 5 Journal of Crim. L. 661 ; 6 Ibid. 22 ; Train : The Prisoner at the Bar, page 56.

8 Olson: Efficiency in the Administration of Criminal Justice (1917), pages 14 et seq.

4 6 Journal of Crim. L.22 ; Probation Manual, published by the Massachusetts Commission on Probation (1916), page IT.
6 Fultz: Public Defender, 31 American Law Review (1897), 394.

6 After much agitation the Prisoners' Defence Act was passed in 1903 to provide counsel to represent the accused.

7 Francis Bacon: Essays on Counsels Civil and Moral, LVI, Of Judicature.

8 5 Journal of Crim. L. 495; 6 Poid. 22.

110 THE REMEDIAL AGENCIES

vious miscarriage of justice he can order a new trial, but the practice is seldom to
interfere with jury verdicts. The judge labors under the further difficulty of know-
ing only those facts that are introduced in evidence. A defendant, who was unrepre-
sented and could not secure the attendance of witnesses, might have a valid defence
of which the judge would be ignorant because the facts would not be before him. He
could not learn the facts for himself, since he is neither empowered nor equipped to
conduct any investigation.

The law attempts to throw its protecting mantle over the prisoner by means of
three rules which in books are strongly in his favor, but which in action are uncer-
tain quantities. It presumes the defendant innocent up to the moment when the fore-
man pronounces the jury's verdict. This rule in practice has little, if any, effect. The
whole criminal system runs counter to it. If it were taken seriously, the state would
long since have placed at the disposal of the accused resources, comparable to those
arrayed against him, to enable him in fact to defend or assert the innocence which
in law presumably attaches to him.1 A second rule requires guilt to be proved "be-
yond a reasonable doubt." Although every defendant's counsel urges this in his argu-
ment and every judge states it in his charge, it is a matter of conjecture whether
juries clearly understand it or its equivalent of "moral certainty," and, if they do,
whether they follow the legal line closely enough2 to make it a factor of any impor-
tance in their deliberations. The third rule, that the defendant's failure to testify is
not to be construed against him, is commonly disregarded by juries3 and is fast be-
coming a dead letter.

That the prosecuting attorney is a judicial officer is a sound statement of law, but
the deduction that he therefore acts as much for the accused as for the state is not
warranted. To an extent he may aid the defendant by his review of the case and by
fairly presenting the evidence to the grand jury as has been indicated,4 but at the
trial he acts primarily as advocate for the government. He may aim to produce the
whole truth, but he seldom knows, or can know, the defendant's story. In every popu-
lous district he is an extremely busy, generally overworked man, necessarily occupied
in trying cases to the best of his ability, and with little time or opportunity to look
out for the other side. In the heat of trial and in his zeal to convict, the prosecuting
officer has often gone such lengths that new trials constantly have to be ordered by
courts of last resort because of his unfairness.5 An epitome of adjudicated cases reveals
that he "has misstated the facts and obtruded improper matter into his opening state-
ment to the jury, has impressed the jury by the suggestion of crimes other than the
one charged, has attempted to get improper matter before the jury, has abused

1 Cf. Report of the Massachusetts Commission on Immigration (1914), page 112 ; Minority Report of Special Com-
mittee on the Public Defender of the New York County Lawyers' Association (1914), page 11.

2 Train : Tfie Prisoner at the Bar, pages 169-161 ; Storey : Reform of Criminal Procedure, page 214.

3 Train: op. cit., pages 207 et seq.

* See ante, page 109.

* Preliminary Report for the National Economic League on Efficiency in the Administration of Justice, page 27.

DEFENDER IN CRIMINAL CASES 111

witnesses, injected his personal and unsworn and damaging statements into the tes-
timony, called the defendant all the vile names in his too plethoric Billingsgate dic-
tionary, and has resorted to all sorts of reprehensible devices to awaken prejudice."1
Much of such unfair conduct is due to the peculiar difficulty under which the district
attorney labors. He is pitted against lawyers who are willing in their defence to use
every trick, strategy, subterfuge, and device in their repertoire to delay or defeat
him. He is forced to adopt an aggressive, distrustful, partisan attitude which is not
consistent with the theory of his official impartiality.2 In short, to expect him ade-
quately to represent both sides is, as every lawyer knows, to expect the impossible.

These seven safeguards are essentially latent, not active, in their nature. The shrewd
criminal supplied with money and able counsel may employ them and the technical-
ities which accompany this procedure to such an extent as to set the whole system at
naught. Because some such striking instances are known to most people, when these
several protections are stated one after the other, there is a temptation to jump to the
conclusion that the law is already too considerate of defendants. It is overlooked that
in the cases of the poor, standing alone without counsel and without funds, they may
prove unavailing.

The great defect, which is common to them all, is that they are effective only in a
negative way. Evervbody who investigates the case for trial — from the complainant on
through the police, bureau detectives, and the district attorney — is on one side. If the
evidence shows the defendant to be not guilty, the protections operate; but nowhere in
this system is any provision made for ascertaining the facts or the law in favor of the ac-
cused. Many defences are affirmative in their nature, as character evidence, self-defence,
alibi, and the bias or malice of the complaining witness. The type of case in which
innocence fails to manifest itself at one stage is precisely the type of case in which
innocence will not be discovered by these protections at any stage of the proceedings.

These are the reasons why the foregoing checks and precautions fail to secure to
the poor as adequate protection as we believe to be the right of every individual
accused of serious crime. Adequate protection, in last analysis, depends on adequate
representation, so that if our criminal procedure, as it stands, is to be found sufficient,
it must be on the ground that it does provide proper representation to the poor
through its system of assigning counsel.

§4

After a case has reached the superior court and passed through the preliminary
stages, the prisoner is required to plead guilty or not guilty to the indictment, and

1 With only a change of tense, this sentence, every phrase of which is supported by decisions, is to be found in
Fultze: The Public Defender, 31 American Law Rev. 395. More recent cases are cited and quoted in Goldman : The
Public Defender, pages 28-31 ; Wood: The Place of the Public Defender in the Administration of Justice, page 9.

2 6 Journal of Crim. L. 662; McCulloch: Here is Justice, 31 Everybody's Magazine (1914), 248, 249: Goldman: The
Public Defender, chapter iii. Public Prosecution and Prosecutors; The Office of the Public Defender, page 9: Tlie
Place of the Public Defender in the Administration of Justice , page 8.

112 THE REMEDIAL AGENCIES

at this time, if he has no counsel and is too poor to employ his own counsel, it is the
practice in the majority of American jurisdictions for the judge to as-
j? a • s*Sn nmi some lawyer to act in his behalf at the trial. In this one par-

"^ j ticular department the traditional administration of justice has recog-

nized that the function of the attorney is essential, that there are per-
sons who cannot afford attorneys, and that therefore in the furtherance of its justice
the state must gratuitously furnish such persons with counsel.

The assignment system varies from state to state, but its important features are
these. Counsel are always assigned in murder cases, and this is true even in those states,
such as the New England States, where there is no general assignment system. In mur-
der cases assigned counsel are paid and in many jurisdictions have an additional allow-
ance for expenses.1 In about half the states counsel are assigned in all felony or more
serious cases, that is, to practically all defendants who appear in the superior crim-
inal courts without their own counsel. In all but seven states counsel in such cases
are not paid and have no allowance for expenses.

Although there are local exceptions due to the fairness of the law in reimbursing
counsel or to the exceptional pains of the judge in making assignments, the follow-
ing generalization as to the system is warranted: in murder cases the assignment of
counsel has been reasonably successful, often brilliantly so, and in all other cases
it has been a dismal failure. This is no paradox; the reasons for this partial success
of themselves show why in the main the system has been, and was bound to be, a
failure.

Counsel assigned in murder cases work with great zeal. They generally earn a greater
fee than the state pays and expend more than they are reimbursed. But it is recog-
nized that the newspaper publicity which attends a murder trial gives a lawyer the
best advertising he can ever have and is just as valuable as a cash payment. The fact
that the defendant's life is in his hands naturally spurs the lawyer on. In a word, the
case appeals simultaneously to the lawyer's self-interest and to the best traditions of
his profession.

The situation is reversed2 in other cases. The prisoner arrested for burglary, rape,
or assault may arouse no sympathy, in fact the matter may be revolting. More im-
portant, the average lawyer, however honest and desirous of performing his profes-
sional obligations, cannot afford to give a thorough defence. Even if he could devote
several days' time to the trial, he cannot pay out of his own pocket for investigators,
detectives, and medical, handwriting, or other experts. Witnesses may be in other
states, and he can neither pay their travel expenses nor engage counsel to take deposi-
tions. The situation forces on the conscientious lawyer the ugly dilemma of either
spending largely of his own funds or of giving an improper defence. Few lawyers are

' This is so in Massachusetts, where counsel are assigned only in capital cases. Revised Laws of 1902, c. 157, §§ 16, 17.

2 District Attorney Smith, of Nassau County, New York, wrote to the Committee on the Public Defender of the New
York County Lawyers' Association: "I find that attorneys assigned to defend persons charged with crime other than
capital cases do not always take the same interest in behalf of their clients as attorneys do who are retained."

DEFENDER IN CRIMINAL CASES 113

in a position to take the former course. The more well-to-do attorneys are entirely
out of criminal practice, and as they lack experience in this work are virtually exempt
from assignment.1

In the light of reason and in the face of the evidence which has been adduced it
is clear that the assignment system in all but capital cases is unfair to the attorney,
unfair to the accused, and that it does not work.2 The adverse report on the public
defender by the New York City Bar Association admits, "There is considerable force
in this contention" that "a poor man's defence is seriously hampered and often pre-
vented by the failure of our laws to make any provision for the expense of investigat-
ing and obtaining evidence, or for compensation to assigned counsel, except in mur-
der cases."3 The adverse majority report of the New York County Lawyers' Associ-
ation makes the statement that "juries are prone to extend sympathy to defendants
when it appears that counsel has been assigned to defend them."4 As an argument,
this is an admission which gives the case away. As a fact, the jurors cannot know
whether counsel is retained or assigned except in rare instances. Once they did know,
for a frank advocate closed his address to the jury with: "This man has no lawyer. I
am only assigned counsel. I get no pay. My only reward is in heaven, and how can I
ever get there!"

Courts have made spasmodic efforts to whip the assignment system into shape by
enlisting the leaders of the bar, but the attempts have not succeeded and have been
short-lived. Assignments as a rule, except in murder cases, fall either to very young
members of the profession who are willing to serve for the sake of the experience, or to
a peculiar class which has arisen in response to our curious condition of affairs. How-
ever amusing to the bar the custom of assigning criminal defences to its most recent
accessions may be, the proceeding on its face is unfair. With legal education as it is,
the fledgling is little more qualified to defend than the prisoner is to conduct his own
defence. Every lawyer remembers his first cases. However great his zeal or untiring his
efforts, the inexperienced attorney labors under an enormous handicap. It cannot be
said that where liberty and disgrace are the stakes a contest between an experienced,
capable district attorney armed with all the resources of organized society and a young,
untried, resourceless attorney, generally embarrassed and often frightened, is a fair
trial.5

A consideration of the second class of attorneys to whom assignments fall brings

1 See Prospectus of New York Voluntary Defenders Committee, published in the New York Law Journal for March
19, 1917, and also separately in leaflet form.

: See 5 Journal of Crim. L. 496, 927 ; 84 Independent (1915), 86, 94; Prospectus of the New York Voluntary Defend-
ers Committee ; Wood : The Place of the Public Defender in the Administration of Justice (1914), pages 6-8 ; Gold-
man: The Public Defender , chapter ii. The Injustice of the Assigned Counsel System; J. P. Schmitt: The Duty of So-
ciety to the Poor before the Law(1914); Minority Report of the Public Defender Committee of theNew York County
Lawyers' Association, containing letters from judges and district attorneys.

3 Fifth Report of the Law Reform Committee of the New York City Bar Association (1916), page 15.

4 This statement in the Majority Report may be found in Bench and Bar, n.s., vol. ix, p. 313. It is quoted and pointed
out on page 18 of the Minority Report.

D Wood: The Place of the Public Defender in the Administration of Justice, page 6 ; 5 Journal of Crim. L. 496 ; Gold-
man: The Public Defender, page 20.

114 THE REMEDIAL AGENCIES

us to one of the sorest spots in all our administration of justice. Just as the neglect
to appreciate the position of injured workmen brought in the contingent fee with its
train of abuses, so the impossibility — to the honest lawyer — of the assignment sys-
tem has given rise to the "professional" assigned counsel. Less polite terms, such as
"jail lawyers," "shysters," and "Tombs runners," are often used as descriptive of this
class. Every lawyer who has the slightest acquaintance with the criminal side knows
that this condition exists ; it is frankly admitted even by those who disbelieve in the
necessity for a defender in criminal cases.1

These men have learned how to make a living out of assigned cases. On days when
the grand jury returns its indictments, and the prisoners are brought to the rail to
plead, these lawyers may be seen sitting within the bar enclosure expectantly waiting.2
Sometimes they are easily identified by their "lean and hungry look." They are willing
to take assignments because they have succeeded by intimidation, threats, extortion,
and even worse, in putting the assignment system on a commercial basis. They know
how to strip a prisoner and his relatives of every last cent. For one whose conscience
permits him to magnify the crime, the sureness of conviction (unless he is paid to
defend), the severity of the judge, and the horrors of prison, the process is simple
and produces results. They have procured fees in devious ways, ranging from com-
pelling the mortgage to some shark of all the household goods to forcing the pris-
oner's wife to sell herself on the streets. That this degradation exists in connection
with the administration of criminal justice is common knowledge. And back of the
professional assigned counsel have grown up runners and straw bondsmen, who have
worked their way into the jails, corrupted officials, and preyed on the prisoners.3

A system of justice which entrusts one of its essential functions to such men is a
bad system. If well paid, the professional assigned counsel undertakes a defence that
knows no bounds of honesty or propriety. It is largely this sort of conduct which
has forced prosecuting attorneys out of their impartial position into an attitude of
hostility and distrust. In these cases it would be ridiculous to consider the lawyer as
a minister of justice. If not paid, he is perfectly willing to betray his client by neglect-
ing the case, or forcing him to plead guilty, or deserting him altogether.

The assignment of counsel in criminal cases, except when the offence charged is
murder, has been a general failure. In part it has become a means of extortion. As
a system, both in plan and operation, it deserves unqualified condemnation.

1 See Fifth Report of the Law Reform Committee of the New York City Bar Association, page 14.

2 Prospectus of New York Voluntary Defenders Committee, page 2.

3 For statements as to the existing situation see Wood : The Place of the Public Defender in the Administration of
Justice ; Goldman : The Public Defender, page 19 ; Report of the Massachusetts Commission on Immigration, page
HI ; Report of the Boston Municipal Court (1916), page 15 ; Train : The Prisoner at the Bar, pages 72-77 : Report of
the Chicago Bar Association (1916), pages 29, 75 et seq. ; 1 Journal of Crim. L. 596 ; Final Report of the New York Com-
mission to Inquire into Courts of Inferior Criminal Jurisdiction, Assembly No. 54 of 1910, p. 70 ; Chicago!/. A. S.
Bulletin, 1912-13, No.l, p. 7;1 Kansas City L. A. R. 10; 27 N. Y. L. A. R. 34; 33 Ibid. 13: 35 Ibid. 11, 22; 15 N. Y. Legal
Aid Rev. No. 3, p.3; Proceedings of Fourth Convention of Legal Aid Societies, page 20.

DEFENDER IN CRIMINAL CASES 115

Because of this breakdown the idea of a defender in criminal cases came into being
and in the last few years has grown apace. Some attempt has been made to discredit
the plan by stamping it as visionary, as a prelude to complete social-
„ ization of the bar, and as subversive of fundamental rights. The pro-

„ j nj posal to establish a definite defender is not revolutionary, nor is the
J thought new.1 It is not an untried experiment, but one that can be sub-

jected to the test of accomplishment. The essential underlying ideas in the proposi-
tion are two : first, that the official or attorney responsible for the defence of indi-
gent prisoners should be paid for his services and his expenses defrayed; second, that
instead of having counsel changing from case to case, all the work should be central-
ized in the hands of one official or organization.

The criminal procedure of other countries shows that elsewhere much progress
has been made in these two directions. For centuries in Scotland there has been an
arrangement whereby the bar associations (both of advocates and solicitors) each
year designate certain members to act for the poor, and to this group all assignments
are made, thereby securing responsibility and a certain amount of centralization.2
In New Zealand, the magistrate, if satisfied after examination of the poverty of the
defendant, assigns him counsel from the list furnished by the Law Society. Such
counsel receives the same fees as the local Crown solicitor for the prosecution, and
is allowed money to defray expenses.3 In Rome, there is a Society for the Gratuitous
Defence of Accused Persons, composed of counsellors and attorneys, which was
licensed as a charitable corporation in 1904 and represents the plan of a legal aid
society for criminal cases.4 In the Argentine Republic, the defence is entrusted to
counsel appointed by the Supreme Court for life at a monthly salary; in Norway,
the expense of counsel for the defence is borne by the state; and in Denmark, the
court appoints for each case a prosecutor and defender, both being selected from
a list of public attorneys appointed by the King.5

In America, the idea was urged at the end of the eighteenth century. Concurrently
with the work of the constitutional conventions, which did much to put accused per-
sons in a more favorable position, Benjamin Austin wrote;6

"As we have an Attorney General who acts in behalf of the State, it is proposed
that the Legislature appoint another person (with a fixed salary) as Advocate

1 6 Journal of Crim. L. 559; Fifth Report of the Law Reform Committee of the New York City Bar Association
(1915), page 2.

2 Kecdy: Criminal Procedure in Scotland, American Institute of Criminal Law and Criminology, Bulletin No. XI
(1913), page 11.

3 48 Law Journal (1913), 538; 19 Virginia Law Register (1914), 788.

4 Chicago Legal Aid Review, vol. v, No. 3 (October, 1908), p. 7.

5 Goldman: The Public Defender, pages 9-13.

6 Honestus: Observations on the Pernicious Practice of the Laic, page 26.

116 THE REMEDIAL AGENCIES

General for all persons arraigned on criminal prosecutions; whose business
should be to appear in behalf of all persons indicted by the State's attorney."

After a period of quiescence the idea was revived, and by 1896 legislation pointing
toward public defence had been introduced in a dozen states.1 Since then the move-
ment has gone forward with accelerating velocity. In 1906, Arthur Train in his fa-
mous The Prisoner at the Bar wrote of the imperative need for relief in criminal cases
and advocated an organization analogous to the legal aid society.2 Two years later
Dean Wigmore wrote, "Ultimately we shall have a public defender, appointed and
paid by the state, precisely like the public prosecutor."3 In 1909, the New York Legal
Aid Society was petitioned to undertake the defence in criminal cases.4 During 1909
and 1910, the proposition was urged in Cleveland by the Legal Aid Society.5 A year
or two later, a pamphlet6 was prepared by J. P. Schmitt of the New York Bar strongly
advocating the idea, which is of especial interest because it names Judge Latshaw of
Kansas City as "one of the ablest advocates of the establishment by the State of a pub-
lic defender." The significance of this statement lies in the fact that Judge Latshaw, as
presiding Justice of the Kansas City Criminal Court, has done everything within his
power to make the assignment system successful, and unquestionably in his court it has
operated more satisfactorily than in the large majority of other courts. His endorse-
ment, therefore, is that of one who has seen the assignment system at its best. In 1914,
the Massachusetts Immigration Commission reported squarely for the public defender
and proposed a bill.7 From 1914 on, there has been a flood of articles in both legal and
popular magazines, bar associations have appointed special committees to consider
the plan,8 and a large number of bills have been introduced into the various state
legislatures.9

An examination of this literature reveals the fact that the defender idea, in last
analysis, is nothing more revolutionary than a plea for the extension of what is best
in the assignment system and for reorganization along modern lines of efficiency. As
payment of a reasonable sum for services and expenses in murder cases has worked
well, let it be extended to the other cases, for assignments in all cases rest on the same
principle and are used to secure the same result. As centralization of work makes for
economy, efficiency, and responsibility, let there be, instead of a shifting group of
attorneys, one definite official or organization charged with the duty of defending the
poor, to whom all assignments may be made.

1 Fultz: The Public Defender, 31 American L. Rev. (1897) 393.

2 Train : The Prisoner at the Bar, page 77.

3 Chicago Legal Aid Review, vol. v, No. 3 (October, 1908), p. 7.

4 7 N. Y. Legal Aid Review, No. 2 (April, 1909), p. 1. 6 3 Cleveland L. A. R. 12 ; 4 Ibid. 12.

6 The Duty of Society to the Poor before the Law. This is undated. It was published in 1914.

7 Report of the Massachusetts Commission on Immigration, pages 112, 228.

8 In addition to the two New York Committees whose reports have already been cited, see 1915 Report of the Chicago
Bar Association, page 63 : 1916 Ibid., page 75; 1917 Ibid., page 69.

9 For a chronology of the legislation from 1913 to 1916 see Goldman : The Public Defender, pages 87-96. Since 1916
legislation has been introduced in Connecticut, Colorado, and Virginia.

DEFENDER IN CRIMINAL CASES 117

§6

Provision for the first1 defender in criminal cases was made by the Los Angeles County

Charter2 which, after adoption by the people and ratification by the legislature, went

into effect in June, 1913. After civil service examinations, Walton J.

/ Wood was selected for the position, and his office was opened on Jan-

CVS (171'Cl

■ \\r uary 7, 1914. In February, 1915, a defender in the municipal court was

provided in Portland, Oregon,3 in July a defender in the superior court
was established in Omaha;4 and in November the city of Los Angeles created a police
court defender.5 In February, 1916, the city of Columbus under its Home Rule Charter
made provision for a defender in the municipal court.6 In New York a splendid organ-
ization under the name of the Voluntary Defenders Committee began work on April
2, 1917.

Under the impetus of the movement several states have passed laws entitled acts to
establish" public" defenders, but the provisions only go half-way, so that it is some-
what inaccurate and rather misleading to consider them as establishing definite offi-
cials or organizations, though they are unquestionably steps in that direction. Thus
Virginia in 1916 provided for the appointment of a defender in Richmond by the
presiding justice, to hold office for two years, but to be paid no salary unless the city
council should see fit to appropriate a sum for that purpose.7 Such a law secures cen-
tralization, but still leaves the old difficulty of putting an unfair, if not impossible,
burden on the attorney. The Connecticut legislature in 1917 authorized the judges
of the superior court to appoint an attorney as defender for the term of court, his
services and expenses to be paid out of public funds.8 This makes possible adequate
representation, but loses the advantages of permanent responsibility.

As the work in Omaha is relatively small, and as no reports have been issued, the
test of the defender in the superior court on the basis of accomplishment is best made
by examining the work done in Los Angeles and New York. An idea of the extent
of the work is gained from the following record of cases undertaken : 9

City Period Cases

Los Angeles January 7, 1914-June 30, 1914 200

Los Angeles July 1, 1914-June 30, 1915 450

1 In 1911 Oklahoma provided its Commissioner of Charities with an official who was called a "public defender." The
title was a misnomer. His function was not to conduct the defence of poor persons in criminal cases but, as defined by
the statute, to "institute, prosecute, or defend any suit or action in any court on behalf of any minors, orphans, de-
fectives, dependents, and delinquents." This office was abolished in 1914. See Fifth Report of the Law Reform Com-
mittee of the New York City Bar Association (1915), pages 4-8, 26.

• Los Angeles County Charter, § 23. 3 City of Portland, Ordinance No. 30,107 of 1915.

* The law was passed by the Nebraska legislature in 1915. Session Laws of 1915. c. 165. In July, 1915, the Governor
made an ad interim appointment. Since November, 1915, the office has been elective.

6 City of Los Angeles, Ordinance No. 33,348, new series.

6 Proceedings of Fourth Conference of Legal Aid Societies, page 135.

' Virginia, Acts of Assembly of 1916, c. 204. See also c. 373. 8 Connecticut Public Acts of 1917, c. 225.

8 The Los Angeles figures are taken from the annual reports to the County Board of Supervisors, the New York

figures from the published report for April-May-June, 1917.

118 THE REMEDIAL AGENCIES

City Period Cases

Los Angeles July 1, 1915-June 30, 1916 431

Los Angeles July 1, 1916-June 30, 1917 522

New York April 2, 1917-June 30, 1917 195

The large majority of these cases involve felony charges; a few matters of parole
and pardon are included. Owing to the newness of the work, accurate or standard-
ized classifications are lacking. By translating the figures into percentages, some idea
of the nature of the work may be obtained. In Los Angeles, the work is divided as
follows:1 felony cases 64 per cent, non-support matters 19 per cent, juvenile offences
9 per cent, the remainder representing inebriety and insanity cases, paroles, and con-
sultations. In New York, the felony cases are subdivided and are:2 burglary 38 per
cent, larceny 30 per cent, robbery 12 per cent, assault 8 per cent, homicide 3 per cent,
and the balance miscellaneous crimes.

Of greater significance is the record as to what happened in these various cases.
By keeping the figures in percentages a more accurate idea is gained.

Disposition Los Angeles New York

Pleas of guilty entered 68.0% 76.0%

Tried and convicted 13.0 2.6

Tried and acquitted 5.7 5.3

Jury disagreed 1.9 —

Case dismissed 11.0 5.3

Discharged on recognizance — 10.5

After a plea or finding of guilt the defender's work still continues. When sentence
is to be imposed, an excessive or unmerited prison term may constitute as great an
injustice as an erroneous verdict. At this stage it is the duty of the defender to in-
form the court of all the surrounding circumstances, the condition and past history
of the prisoner's life, to ask mercy where it is deserved, and to assist the court in
arriving at a just disposition of the case.3 In Los Angeles, of 258 persons who pleaded
or were found guilty, probation was granted to 107; in New York, of 121 persons
who came up for sentence, 46 were released under suspended sentences. People v.
Harris is a California case which illustrates the need for adequate representation after
determination of guilt, if the court is to be enabled to mete out justice.4 Harris was
arraigned as a burglar, pleaded guilty, and claimed that he had entered the house
to secure food. The defender's investigation revealed that he had been unable to se-
cure work, had applied to the chief of police and secured a job for one day, had nearly
starved for two days before committing the crime, and that his record was clear. As
he had not actually stolen anything, the question of restitution was not involved. He

1 From the 1916 Report to the Board of Supervisors.

' Report of Voluntary Defenders Committee, April-May- June, 1917.

3 Cf. Prospectus of the Voluntary Defenders Committee, page 3; The Place of the Public Defender in the Admin-
istration of Justice, page 10.

4 This ease is reported in The Place of the Public Defender in the Administration of Justice, page 11; see also
50 Review of Reviews (1914), 742.

DEFENDER IN CRIMINAL CASES 119

was released on probation, which disposition was unquestionably fairer to him and
more in the interests of society than a term in the state prison.

How far the defender will prevent the conviction of innocent persons cannot, in
the nature of things, be answered with precision or by statistics. The question is based
on an imaginary premise, for we rarely know whether the accused is guilty or inno-
cent. In the more serious cases there are seldom impartial eye-witnesses to the act.
Only the accused, and sometimes his accuser, has absolute knowledge, and the word
of neither can be accepted as final. There is no standard of comparison, for it is im-
possible to determine how many verdicts of guilty are erroneously found under our
present system. From time to time cases come to light where error appears to have
been committed,1 but this again is conjectural, for we lack even a court adjudica-
tion as a guide. We have no proceeding, such as that in France,2 whereby a man once
found guilty and his case closed can some time later secure a new trial and be pro-
nounced innocent. With us, he may be pardoned or paroled, but never acquitted.

It is unquestionable that the existence of the defender must prevent some unjust
convictions. We believe that by a jury verdict after a fair trial we approximate the
truth as closely as is possible. The defender reduces the danger of error to a mini-
mum because he guarantees a fair trial to every one.3 This is the fact in Los Angeles.
Although the defender instructs more of his clients to plead guilty than did assigned
counsel under the former regime, and although he tries only cases where he has faith
in the defendant, he has secured a substantially larger number of acquittals.4

The case for the defender rests primarily on the fact that such an office performs
an essential function in the administration of justice more efficiently, more economi-
cally, and with all-round better results than any other plan. The increased efficiency
can readily be appreciated. It is apparent that, if other factors are anywhere near even,
the attorney who devotes all his time to criminal work is more familiar with the law
and the details of procedure than the attorney who is occasionally assigned a case. Cen-
tralization of work makes specialization possible. The office learns the easiest method
of conducting the work, it develops its own staff of investigators, and knows the proper
authorities to consult as points arise. The defender becomes an expert in criminal law
just as we have experts in patent, or mining, or corporation law. The result is the same
as the greatly increased efficiency in caring for the civil cases of the poor which has
resulted from centralizing all such work in a well-organized legal aid society.

A defender's office, whether supported by the state or by contributions, obviously
costs more than assigned counsel who are paid nothing. If, however, adequate repre-
sentation is to be had, assigned counsel must be paid and their expenses reimbursed,

1 Of these the most recent is the Stielow case in New York, New York Times for May 12, 1918, page X 5. See also 106
Outlook (1914), 660; Boston Herald for October 10, 1917; and the statement of Judge Crist in 62 Ann. Am. Ac. Pol. &
Soc. Science (1914), 179.

2 For an explanation of the French review proceeding see Richard W. Hale: Tlie Dreyfus Story (3d ed. 1899).

3 Tlie Place of the Public Defender in the Administration of Justice, page 13.
* The statistics are given post, page 123.

120 THE REMEDIAL AGENCIES

so that the true comparison to determine the more economical method is between the
defender and paid assigned counsel. During its first ten months the expense of the
criminal department of the Los Angeles office was about $8400; during 1915, 894*00;
and during 1916, $1 1,161 .40.1 The average cost per case was respectively $23.86,
$20.88, and $21.38, or a flat average for three years in 1324 cases of $21.87 per case.
In the superior criminal court for Milwaukee, where assigned counsel are paid, the
expense over a period of four years ending 1913 averaged $4934.25 per year for 121
assignments each year, or an average cost per case of $40.86. 2 It is probably not in-
accurate to estimate that to secure adequate representation for indigent prisoners by
paying assigned counsel is twice as expensive as by the defender plan.

Undoubtedly a further saving accrues to the state from the greater despatch with
which the defender conducts his cases, thereby reducing the enormous overhead ex-
pense of maintaining the judicial machinery. The defender has no outside conflicting
engagements ; both he and the district attorney are available for trial when reached.
He saves time in not raising formal or interlocutory questions for purposes of delay.
His position and his relationship with the district attorney are such that cases are
tried to the merits rather than on technicalities. The delays which at times have
amounted to an open scandal are not utilized by him, because that is not his duty.
Mathematical demonstration is based on such involved computations that it would
be an unjustified digression in this study. In his 1916 report to the Board of Super-
visors, Mr. Wood undertakes an extended analysis of these figures and reaches the
conclusion, which is warranted by the facts, that his department saves Los Angeles
County, over and above all expenses, a sum of about two thousand dollars each year.3

Before passing to a consideration of some of the further particular results of the
defender plan, it is necessary to advert briefly to certain questions about the conduct
of the work which always obtrude themselves in the discussions. They are mostly
philosophical or ethical in their nature, such as " Will the defender defend men whom
he knows to be guilty?" and " Should he require defendants to take the stand against
their will?" Such questions are admittedly difficult, but they are not peculiar to the
defender in criminal cases. They are precisely those questions which confront all law-
yers, and which the codes of ethics can answer only in generalities. So far as the lines
of conduct are clear they will be better observed by the defender than has been the
case with retained criminal lawyers. He may not be able to prevent his clients from
using perjured defences, but certainly he will not be a party to manufacturing them.
It is his duty, as it is that of every attorney,* to refuse to permit evidence, known to

1 These figures are taken from the reports to the Board of Supervisors. They are not absolute because, as the public
defender also does civil work, some administration expenses had to be prorated; but if they err, it is not on the side
of underestimation.

2 These figures were furnished by the Milwaukee Bar Association, and are published in The Place of the Public De-
fender in the Administration of Justice, page 18.

3 See also 8 Journal of Crim. L. 230. 597.

4 For a discussion see In re Palmieri, 162 N. Y. Supp. 799. The case was reversed on the facts but not on the law in
221 N. Y. 131.

DEFENDER IN CRIMINAL CASES 121

him to be false, to be introduced before the court. Though he may believe the defend-
ant guilty, it is his duty, under all codes of ethics, to represent the defendant at the
trial and give him an honest defence. Mere belief gives to the lawyer, acting under a
court assignment, no right to constitute himself judge and jury. If he has indepen-
dent knowledge of guilt, it must be from facts which would make it his duty to be
witness and not advocate.

The most troublesome question is as to his duty when his knowledge comes from
his client's confession, which is privileged. In practice this issue has not presented
itself. In New York, all defendants who have admitted guilt have been persuaded to
be honest with the court and plead guilty.1 When the problem does arise its solution
will have to be left to the individual conscience deciding on the facts of the partic-
ular case. It is the strongly prevailing present opinion of the bar that in such cases
it is the lawyer's duty to defend, refraining from introducing any false evidence, per-
mitting no perjury known to him, but requiring the state to prove fairly the truth
of its charges. More instructive than any abstraction is the story of what actually
takes place. William Dean Embree, in his first report as counsel for the Voluntary
Defenders Committee, makes this frank statement of his experience in New York:2

" Of the twelve cases actually tried there were eight acquittals and four con-
victions; of the twelve men who went to trial all asserted their innocence to
counsel. Of the eight acquitted we believed in the innocence of six. Of the four
convicted two were clearly guilty: the evidence against the third was over-
whelming; and the evidence against the fourth was not strong but he had all the
subjective evidences of guilt.11

§7

In addition to the essential features of the defender's work, which are to advise prison-
ers as to their legal rights, give them honest representation at the trial, and submit
to the court the facts by which a just sentence may be fixed, there are

ur 1 e- certain further important results. The whole tone of criminal trials
su s oj j^ \)een raiSed. The superficial but common remark that it is absurd

ejen er ^ society to employ one man to convict and another to acquit has

been shown to be wholly beside the point. The administration of justice gives to each
merely the function of presenting his side of the case in the belief that in the clash
truth is best discerned. Instead of working at odds, it has been possible for the two
attorneys to work in harmony to a common end.3

In both Los Angeles and New York the defender has the cordial support of the dis-

1 Report of Voluntary Defenders Committee, April-May-June, 1917, page 3. For the same experience in Los Angeles,
see Clary: The Public Defender, 7 Pomona College Quarterly, 49, 56.

2 Report of Voluntary Defenders Committee, supra.

5 See Report of Voluntary Defenders Committee, April-May- June, 1917, page 4 : The Office of Public Defender,
page 16 ; The Place of the Public Defender in the Administration of Justice, pages 16-20 : 107 Outlook (1914). 828.

122 THE REMEDIAL AGENCIES

trict attorney. The defence is conducted without resort to trickery or deliberate false-
hood, and the knowledge of this fact permits the prosecution to adopt an equally
high plane of conduct. This is well demonstrated by the attitude of the two officials
in insanity cases. In murder cases the defence of insanity has at times been so much
abused as to become a by-word. It has been said that alienists could be secured to
testify to anything. Certain it is that the spectacle of six experts testifying for the
government that the accused is wholly normal and an equal number swearing for
the defence that he is violently insane has not been edifying. It has tended to turn
a trial into a farce and, as developed by the press, it has thrown discredit on the
entire administration of law. When such a case arose in Los Angeles and the defender
interposed the defence of insanity, the prosecutor knew the claim was bona fide. The
two officials asked the court to appoint three disinterested physicians as experts, and
it was stipulated that no other alienists would be called at the trial.1 Such a method
is fair, economical, and calculated to dignify the whole tone of our criminal pro-
cedure.

That the defender tries his cases on their merits without resort to technical objec-
tions taken chiefly for purposes of delay, and that this course saves time and expense
to the state without prejudice to the defendants, is borne out by such figures as are
available. In such a field as this, it is, of course, impossible to attain mathematical
precision ; all that can be done is to submit facts from which reasonable inferences
may be drawn. An idea as to the use of technicalities is gained by reviewing the work
of the Los Angeles defender in 1914 in contrast with that of paid attorneys in Los
Angeles during the same year.2 The figures as to demurrers are striking.

Number of felony cases
Number going to trial

Demurrers filed
Demurrers sustained
Motions to quash
Motions granted

Motions for new trials
Motions granted

Appeals taken

Paid Attorneys
in 191U

The Defender
in 191k

514

260

147

ie comparison

shows the following fac

'aid Attorneys
in 191U

The Defender
in 191L

147

239

1.626

1.017

Number of trials
Number of days in trial
Average time in days per trial

1 G. Smith : Making the Law work Both Ways, 84 Independent (1915), 94; 7 Journal of Crim. L. 597.

2 These figures were submitted by Mr. Wood to the Board of Supervisors as a part of his report for 1916. They were
subsequently published in 7 Journal of Crim. L. 230.

DEFENDER IN CRIMINAL CASES 123

The time saved by the defender being on an average slightly more than half a day
per case tried, it is easy to see that in the course of fifty or one hundred trials quite
a saving is effected when it is remembered that the daily cost to the state of a crimi-
nal jury trial is from one hundred and fifty to two hundred dollars.1

That the defender's conduct is not a deprivation of substantial rights, and that it
does not militate against the accused's chances to demonstrate innocence, is reason-
ably well borne out by the following table. The inference is warranted that persons
represented by the public defender have fared as well as those represented by their
own attorneys, and better than those represented by assigned counsel before the advent
of the defender.

Work of Assigned
Counsel in 1913

Work of the
Defender in 191k

Work of Paid At
torneys in 191k

Number of cases
Pleas of guilty entered
Their percentage

115

62%

260
183

70%

514

250

48%

Defendants given probation
Their percentage

28%

87
33%

154

30%

Number of trials

147

Per cent going to trial

26%

22%

28%

Verdicts of not guilty or

disagreements
Their percentage

20%

34%

36%

The above table contains a clue to the greatest immediate benefit which the estab-
lishment of the defender has brought about. In Los Angeles he has taken over al]
work formerly done by assigned counsel, and yet it appears that in 1914 more than
twice as many cases came to him than reached the assignment stage in 1913. The
chief reason for this is that under the former system, as counsel were assigned only
at the time of arraignment in the Superior Court, prisoners had no one to advise
them while in jail, they faced the preliminary hearing without any one to represent
them, and so very easily fell prey to the jail lawyers and their "runners'" who infest
the jails. The defender has fought fire with fire. Each day a deputy visits the jails,
cards stating that the defender is available for advice or help are in the cells, prison-
ers pass the word around, and the turnkeys are willing to forward notes. The jailers
have cooperated because when the chance is given them they prefer to recommend
the unfortunates in their custody to an honest attorney rather than to sharpers.

As the influence of the defender increases, that of the jail lawyer wanes. In Los
Angeles that species of lawyer has been eliminated.2 It has always been recognized
that the establishment of an organization for public defence was certain to have this
effect,3 but the importance of the result has not been fully appreciated. It is no ex-

1 Mr. Wood estimates the cost in Los Angeles at $200 per day. The Massachusetts Industrial Accident Board in its
report for 1914-15 (Massachusetts, Public Document No. 105 of 1916, p. 71) estimates the cost of a civil jury trial in
Massachusetts at $248.89 per day.

2 The Place of the Public Defender in the Administration of Justice, page 14; 7 Journal of Crim. L. 595.

3 Cf. Fifth Report of the Law Reform Committee of the New York City Bar Association, page 14.

124 THE REMEDIAL AGENCIES

aggeration to say that if no other reason existed, the defender plan would be more
than justified by its success in stamping out these serious evils and thereby protect-
ing from these "shysters'1 and "jail lawyers" not only the prisoners but the admin-
istration of justice itself.

One further result deserves mention here. The defender in criminal cases will be
able to accumulate a fund of experience and data which will cover new fields and
complement the facts gathered by probation staffs and the courts themselves, all of
which will be invaluable in pointing the way to the betterment of our criminal pro-
cedure and our treatment of the criminal.1 This opportunity is similar to that afforded
by the legal aid organizations, so that its signifiance may conveniently be treated
more fully in a later section devoted to this subject.2

§8
Whether or not the defender plan ought to be extended to the lower courts is a ques-
tion that does not admit of easy answer. As to that part of the work of inferior crim-
_ inal tribunals which relates to preliminary arraignments and proba-

, _ ble cause hearings there mav be need of a defender, but he should

171 ttl€ LtOZCCV

be the same official who works in the superior court. This original
jurisdiction of the police and municipal courts includes felonies,
and the proceedings constitute the first stage in all serious criminal charges. If the
defender is later to be called upon to represent the accused in the superior court, he
clearly ought to have the right to appear at every step in the procedure, and there-
fore as to this limited field there may be need of his services. Certainly the Los An-
geles charter provision which precludes the defender from acting in the lower courts
in such instances is a mistake.3

As to misdemeanors and all other cases over which the lower courts have final
jurisdiction (subject only to appeal), by having power themselves to impose a fine
or prison sentence, the situation is entirely different. Many of the reasons for the de-
fender in the superior courts do not obtain in the inferior courts. Very often there
is no prosecutor, or if there is, his work is purelv formal, so that there is little or no
inequality in not furnishing counsel to the accused. Formal trials are the exception.
The procedure is simple: in the absence of counsel the judge follows the rules of evi-
dence only loosely, and generally the judge himself conducts the proceedings, bringing
out the facts on both sides. It is possible for the defendant to tell his own story in
his own words. As to many of the offences which bulk large in the work of the lower
courts, such as drunkenness, street- walking, selling without a license, vagrancy, and
overspeeding, the arresting officer is himself the witness and, except in those courts

1 See Introduction by Dean Wigmore in Train : The Prisoner at the Bar (2d ed.), page xvii.

2 Chapter XXn, Legal Aid and the Community, § 3, Preventive Law, page 214.

3 The Place of the Public Defender in the Administration of Justice, page 20.

DEFENDER IN CRIMINAL CASES 125

where the dangerous practice obtains of making the police act as prosecuting attor-
neys, which at once forces them into an aggressive and partisan attitude, such evi-
dence is generally free from the taint of spite or malice or revenge which may charac-
terize the evidence in complaints sworn out by private parties.

On the other hand, it can properly and with much force be urged that these are
the courts of the people, that it is here that the great majority of persons have their
only contact with the administration of justice, and that in accordance with the
treatment they receive — particularly is this true of the immigrant population — will
they judge our institutions.1 Further, as to cases where representation is necessary,
the only possibilitv is to have a defender because the inferior courts never have
exercised the power of assigning counsel. Finally, it is truthfully said that the evil of
jail lawyers, " runners,"1"1 unreliable interpreters, and preying bondsmen, exists in its
most malignant form in connection with the inferior courts.2

There is need for some one to assist the foreigner, the ignorant, and the terrified, if
their side of the story is to be fairly heard. Undoubtedly a responsible intermediary
who talked with the prisoners before their cases were reached could present the facts
more intelligently and with a great saving of time to the court. It does not follow,
however, that such a person must be an attorney. As in the small claims court, the
attorney's function in the inferior criminal court is slight. There are few questions
of law, the facts are generally simple, and the procedure is informal. It is likely that
so far as representation is concerned, all that is needed or desirable could be secured
through the probation officers. Much of the work done by the existing police court
defenders finds its counterpart in other states in the work of the probation staff. After
its study of the Columbus Municipal Court, the Bureau of Municipal Research recom-
mended that the office of defender be abolished on the ground that the work was a
duplication of that of the probation officer.3 In Cleveland an intermediate plan was
tried. The Legal Aid Society asked Newton D. Baker, then City Solicitor, to appoint
a defender for the police court. It was arranged with the court that if parties needed
or asked for advice, they might be assigned attorneys from the civil side of the City
Attorney's office.4

The best examples of defenders in the lower courts are to be found in the police
court of the city of Los Angeles, and in the municipal court of Portland, Oregon.
For nearly a year the work was performed in Portland by a voluntary committee, until
in 1915, by ordinance, the position was made official.5 David Robinson was appointed
as defender and began work in March, 1915. No reports, other than monthly state-

1 Cf. Final Report of the (Neiv York) Commission to Inquire into Courts of Inferior Criminal Jurisdiction, As-
sembly No. 64 of 1910, page 86: 9 Legal Aid Review, No. 2, p. 5.

2 Final Report of the (New York)Commission,etc, pageTO ; Report of the Massachusetts Commission on Immigration
(1914), House Document No. 2300, page 107 : Report of the Boston Municipal Court for 1915, page 16; Train: The Pris-
oner at the Bar, page 74.

3 Report of the New York Bureau of Municipal Research to the City Council of Columbus, dated January 31, 1917.
See page 28.

4 Baker: Police Court Prosecutions and a Public Defender, 2 American City (1910), 266.

6 Ordinance No. 30,107 of 1916. To be appointed by the Council to hold office at its pleasure at an annual salary of $1800.

126 THE REMEDIAL AGENCIES

merits to the Mayor, have been made. From an examination of such reports and the
files the following facts appear: From May 1, 1915, to December 31, 1915, 1998 cases
were undertaken, and during the year 1916 the number was 1363. The great decrease
was due to the prohibition law which took effect January 1, 1916. An analysis of 3077
of these cases (May, 1915, to November, 1916) shows the following results:

No. of Cases

Discharged

Held for
Grand Jury

Punished by Fine
or Imprisonment

Continued
for Sentence1

3077

997

544

1457

In Los Angeles the great success of the defender for the county led to the passage
of an ordinance on November 18, 1915, creating the position of city police court de-
fender.2 James H. Pope qualified under the civil service law and began his work Febru-
ary 14, 1916. Up to November 1, 1916, there had been 883 cases. No analysis of these
figures is available.3

The methods employed by both officials are nearly identical and may be stated
together. Neither attempts to represent all persons, but confines his activities to those
who are too poor to engage their own counsel. Those who have obtained bail are con-
sidered able to pay fees. In Portland, there is the further precaution of requiring an
affidavit of poverty; in Los Angeles, the prisoner's property slip, made out by the jailer,
affords the basis for decision. Each night the jailer makes out a list of persons who
have been arrested and transmits it to the clerk, who checks off those released on bail.
Early each morning the defender receives this list from the clerk and then goes through
the jail, hearing each man's story, advising him how to plead, and often further ad-
vising him as to his future conduct. As the cases are called in court the defender again
suggests as to the plea, states the facts briefly to the judge,4 and suggests a proper
disposition. If the plea has been not guilty, the process is nearly the same. There is
a marked absence of formal trials, of cross examination, argument, and the like. It is
for these reasons that an adequate probation staff ought to be able to perforin the
necessary work as well as an attorney.

Many of the same advantageous results which have already been noted in connec-
tion with the defenders work in the superior courts can be observed in the inferior
courts. There has been a saving of time with its consequent economy. Prisoners are
properly advised, their cases are brought promptly before the courts so that they are
not unnecessarily detained in confinement, trials are more honestly conducted, for the
defender is never party to perjured or manufactured defences, and by reason of this
the relationship with the prosecuting officer is one of cordial cooperation. Finally,
the jail lawyers with their runners and bondsmen have been practically eliminated.

1 Continued for sentence is analogous to release on probation under a suspended sentence.

2 Ordinance No. 33,348, new series. The office was later put under civil service. The appropriation for the first year
was $2710. The defender's salary is $1680.

3 The only report is a typewritten statement made to the Mayor on September 20, 1916. This deals with the work
generally.

4 See 84 Independent (1915), 95, 99.

DEFENDER IN CRIMINAL CASES 127

All of these results, except possibly the last, can be secured by an adequate pro-
bation staff.1 As the probation branch is indispensable to every criminal court, the
sounder line of development would seem to be to entrust this service to the proba-
tion officers rather than to duplicate the work and create new officials. There remains
the great and growing evil of the jail lawyer. Thus far it has not been met by any
agency as successfully as by the defender. There is not at present sufficient experience
to warrant a final statement. If, however, after intelligent cooperation between court,
jailer, and probation staff, the mischief caused by the shyster is not abated, there will
exist an irrefutable argument for establishing defenders in the municipal and police
courts.

§ 9
The defender in criminal cases, whether publicly or privately supported, is unques-
tionably the best immediate method for securing freedom and equality of justice
,_, , _ 7 to poor persons accused of serious crimes. It is a complete solution

. „ ,, of the difficulties in the existing administration of the criminal law
opment of tlie . . . . , , ° . .. . . .

JL „ . which have placed poor prisoners at a serious disadvantage, and it

remedies some of the most glaring abuses which have brought the

criminal law into disrepute.

The plan has gained great popular favor. An interesting reflection of this is to be
found in recent political campaigns in which district attorneys have asserted that, if
elected, they would themselves be public defenders.2 Five years ago the phrase would
have been meaningless. The idea gives promise of rapid development. Since 1914 it
has spread very generally throughout the country, and has made more headway in
legislatures and in the community at large than the proposed reforms in court reor-
ganization and simplification of procedure. In three years it has made more impres-
sion on the public mind than its more ancient ally, the legal aid society, has been able
to make in forty years.

It is not unlikely that the superior court defender will become recognized in the
near future as an integral part in the administration of criminal justice. In the east
the initiative is more likely to come from private than from public sources. If the
legal aid societies possess the requisite vision and strength, they maybe expected to ex-
tend their work into the criminal field and establish departments which will afford to
the poor, who are accused of serious offences, the services of a skilful, well-equipped,
and honest defender.

1 After an examination of the Women's Night Court in New York, where there is an excellent probation service,
made by Mr. Embree, counsel for the Voluntary Defenders Committee, and the writer, and after consultation with
Judge Frothingham of that court, it seemed evident that there was no need for a public defender.

2 During the 1916 November election the hoardings in Denver carried this advertisement: " Vote for Foley for Dis-
trict Attorney— A Public Defender not a Persecutor."

Chapter XVI
LEGAL AID ORGANIZATIONS

The purpose of this Society shall be to render legal aid, gratui-
tously if necessary, to all who may appear worthy thereof, and
who are unable to procure assistance elsewhere.1

THE last and the greatest remedial agency is the legal aid society. Though it
stands as an extra-legal institution, unrecognized by the traditional adminis-
tration of justice, it has done more to place the poor in a more equal position before
the law than all the other agencies combined. For years it was alone in combating
the denial of justice. Now it is supported and aided by the recent development of the
other agencies which have already been described.

The legal aid organization is not a thing unto itself; its tremendous importance
consists of the direct part which it takes in the administration of justice. For this
reason the only true definition of legal aid work is in terms of relationship to the
administration of justice and to the various remedial agencies. Only such a defini-
tion can ascertain the principles common to all legal aid organizations, prevent our
being led astray by apparent differences in work in different cities, and establish a
standard by which we can gauge the success and failure of legal aid work as far as it
has developed.

A summarization of what has gone before brings us to a precise definition. We
have seen that our present inequalities are the result, not of an unfair substantive
law, but of the procedure which we have inherited and built up for administering
that law. We have seen that the defects in the machinery of justice which cause the
denial of justice to the poor are delays, court costs, and the expense of engaging
counsel. We have seen that delays and procedural difficulties will be eliminated in
due course as the reorganization of courts and simplification of procedure makes its
inevitable headway, and that costs can be taken out of the way whenever we have
the courage and will to do it. We know that the great difficulty, the difficulty which
is inherent in our system of administering justice and cannot easily be done away
with, is the expense of engaging counsel for advice or assistance in litigation.

We have examined eight groups of agencies and methods which are attempting
the equalization of justice by solving, in one way or another, the problem of the ex-
pense of counsel. Discarding the system of assignment of counsel, which has amounted
to little and which contains but small promise, we have found that the four types
of cases which make up the chief burden of the poor are beginning to be taken care
of through six agencies. Through the small claims court wage claims and miscella-
neous small cases are beginning to receive suitable treatment. By conciliation and
arbitration a start has been made in the employment of a new method of caring for

1 Constitution of the New York Legal Aid Society, Article I, § 2.

LEGAL AID ORGANIZATIONS 129

small claims and domestic disputes. In the domestic relations courts a vast number
of domestic difficulties are securing proper disposition. Under the administrative
tribunals great progress has been made in the settlement and adjustment of suits
growing out of industrial accidents. From administrative officials much legal advice
is obtainable, and in a few instances direct assistance in litigation, notably in con-
nection with wage claims, is available. Analysis has shown that, on the one hand,
the agencies are capable of large expansion both through their adoption in more
jurisdictions and through an increase in their functions ; and that, on the other hand,
they are not and probably never will be complete solutions for the difficulty of the
expense of the attorney.

As to all cases in certain fields of the law and as to certain types of cases in all
fields, the attorney is a necessity. To secure equality of justice in such cases, the only
possible solution is to supply the attorney gratuitously to poor persons. Thus in the
field of criminal law there is no possibility of eliminating the attorney, and the prob-
lem of how best to supply him is answered by the seventh agency considered, — the
defender in criminal cases. What is true of the criminal law is equally true of great
parts of the civil law. The only possible solution is to supply counsel, and here the
legal aid society makes its appearance.

The function of the legal aid society is to furnish counsel to poor persons; to
undertake their cases when no other assistance elsewhere is available. This definition
fixes the relationship between legal aid organizations and the other remedial agen-
cies and the entire administration of justice. Before these other agencies came into
being the whole burden was thrust on legal aid organizations, to be met by them as
best they could. Their load is lightened and their particular work changed as the
other remedial agencies are established and developed. The Boston Legal Aid Society
must supply attorneys for miscellaneous small suits in the Municipal Court; the
Cleveland Legal Aid Society can refer such causes to the Small Claims branch of the
Municipal Court. The Kansas City Legal Aid Bureau must be prepared to under-
take proceedings to collect wages ; in Boston they need merely to be referred to the
State Board of Labor and Industries. While the work varies radically from city to
city, the function everywhere is the same. A steady change in the cases requiring
assistance from legal aid organizations is inevitable because of the part they play.
As the domestic relations courts widen their functions and take over illegitimacy
and separate maintenance, such cases will disappear from the legal aid offices; and
as the industrial accident boards become less able to take care of disputed compen-
sation cases, injured workmen will appear in increasing numbers among the legal aid
applicants.

If, in the language of the day, we conceive of organized society at war with the
inequalities in the administration of justice, then the first six agencies — small claims
courts, conciliation, arbitration, domestic relations courts with their probation staffs,
administrative tribunals, and administrative officials — constitute the first line of

130 THE REMEDIAL AGENCIES

attack. It is for the legal aid organizations, including the defenders in criminal cases,
to constitute the second line, to sweep up all that may evade or break through the
first line, and to go forward on the points which the first line cannot reach.

Having, in this general way, defined the relationship of legal aid work to the other
agencies and its relation to the entire administration of justice, we now turn to a
more detailed examination of how legal aid organizations came into being, of what
they have accomplished, of their present position, their future, and of their effect on
the law, on the bar, and in the community.

PART III
LEGAL AID WORK IN THE UNITED STATES

Chapter XVII

ORIGIN AND DEVELOPMENT OF LEGAL
AID ORGANIZATIONS

The founders of the Legal Aid Society, whose original intention it was to pro-
tect a certain class of poor immigrants from the rapacity of runners, ticket
speculators and the like, certainly had no idea of the majestic proportions
which their enterprise would assume. Like an avalanche it has gathered strength
and increased in proportions as it advanced. Arthur v. Briesen.1

§1

1EGAL aid work of an informal, unorganized, individual sort has always existed.
J The first legal aid work in the United States was undoubtedly done in the first
law office established in the American colonies. The various charity organizations,

some of which were established early in our history, have always done
Preliminary ,, , , .j , ., , , n.

a a measure ot legal aid work as the need arose by calling upon some

individual attorney to give legal assistance in a particular case. In a real sense the
service rendered, whether by law office or charity, may be called legal aid. Such work
by the individual lawyer is still to be found in any smaller city or town, and many of
the charities, even in the larger cities, still continue to give legal as well as material
assistance.

All work of this nature, though it must be recognized, lies beyond the scope of
our enquiry. Our concern is with the administration of justice as it affects the poor,
with agencies which are playing a part in the betterment of that administration, and
with any movement that seems to offer some solution for the existing denial of
justice. Informal and individual legal aid work, from its nature, is transitory and
fleeting. However much it may have aided the individual poor person here and there,
it failed to affect the administration of justice, it offered nothing permanent on which
to build, and when the enormous demand for legal assistance came with immigration
and the growth of great cities in the last quarter of the nineteenth century, it col-
lapsed. Then arose organized legal aid work which, being possessed of permanence
and rapidly taking on the character of an institution, steadily grew in every direc-
tion and dimension. Our concern is with this organized legal aid movement because
it offers one great solution for the inherent difficulty of the expense of counsel, and
because it bids fair to exercise a profound effect upon the administration of justice
itself. For our purposes, the distinction between individual and organized legal aid
work may be likened to the difference between the personal charity work of a phy-
sician for individual patients and the establishment of hospitals and dispensaries. Or,
to come more nearly to our own subject, judges have from time to time tried to ad-
just small disputes by conciliation or informal hearing, but such isolated instances

1 From the Twenty-fourth Annual Report of the President of the New York Legal Aid Society, 24 N. Y. L. A. R. 6.

134 LEGAL AID ORGANIZATIONS

left no impression on the administration of justice and afforded no solution for the
general problem of securing justice in a multitude of small matters. It was only the
organized small claims court that had the power to alter the course of judicial ad-
ministration and to offer a general solution for the general problem.

We have already seen that legal aid work consists of giving legal advice and legal
assistance in negotiation and litigation to poor persons, without cost to them or
at a minimum cost which they can afford, in matters where no other assistance is
available. In the light of modern developments this may be spelled out to mean the
furnishing of lawyers in cases where lawyers are necessary if justice is to be done, and
where no other agency, as the state or the court, provides the attorneys or persons
to perform the attorney's functions. A legal aid organization is simply an organization
which has undertaken that responsibility. The organization may be a corporation, or
a voluntary association, or a department of a larger organization such as a bar as-
sociation, a municipality, or an organized charity; but there is implied something
more than individual effort, there must be some elements of association, combina-
tion, and cooperation, through which are secured continuity and permanence.

As the primary object of this study is to set out the functional importance of the
various agencies which are equalizing the administration of justice, the history of
these movements is of importance only as it makes clearer the part which each plays
or may be expected to play. With over forty legal aid organizations in the United
States, a volume could be written on the one subject of their history. All that can
be attempted here is to present the broad outlines of the rise and development of
legal aid organizations in order that from such a background the work itself and
its possibilities may be better appreciated and estimated.

§2

Organized legal aid work began its history in the city of New York in the year

1876. For nearly a century there had been in that city an association called The

German Society, which had an especial interest in German immigrants.

' Following the Civil War there was a great German emigration, and to

fi meet the legal questions which were constantly arising, particularly with

reference to the protection of newly arrived immigrants, The German

Society appointed a special legal committee. By 1875 the burden of legal work had

become so great that it was suggested by Sigismund Kaufman and Charles Hauselt

that a separate society be formed.1

Accordingly, early in the year 1876 a group of American citizens of German
birth and members of The German Society in New York met at the law office of
Edward Salomon, an ex-governor of Wisconsin, for the purpose of forming an as-
sociation, and on March 8, 1876, their organization was incorporated under the name

1 Holls : Tlie Legal Aid Society, 8 Charities Review (1898), 16.

ORIGIN AND DEVELOPMENT 135

of " Der Deutsche Rechtsschutz Verein." Their purpose, as the original constitution
stated,1 was "to render legal aid and assistance, gratuitously, to those of German
birth, who may appear worthy thereof, but who from poverty are unable to procure
it.11 Ex-Governor Salomon was elected president, offices were opened at 39 Nassau
Street, and an attorney, who had his own law practice, was paid a salary to take
charge of the cases of the new organization.2

This was not a legal aid society within the modern meaning of that phrase. It ex-
isted to protect German immigrants from the rapacity of runners, boarding-house
keepers, and a miscellaneous coterie of sharpers who found that the trustful and be-
wildered newcomers offered an easy prey. The purpose was relatively a narrow one.3
There was no conception of furnishing legal assistance in general, of preventing in-
justice except in this limited field, or of taking any part in the administration of
justice. The organization was proprietary in its nature; it was supported entirely by
The German Society, by German merchants, and by persons interested in assisting
Germans. At the outset there was no vision of the future. There was not even an
intention to try to develop into a general and far-reaching organization. But it was
a beginning which was strong enough to weather the distrust and jealousy at first
manifested by the legal profession,4 and which did in fact, albeit unconsciously, lay
a firm foundation for the great development that was to come.

The organization was made efficient and businesslike. Careful records of the cases
and of sums collected for clients were made, and excellent reports, written in Ger-
man, were published each year.5 In 1879 the directors voted that on all collections
of over twenty dollars the Society should charge a commission of ten per cent, and
in 1881 the charge was extended to all collections above ten dollars. It is interest-
ing to note that at the very outset two types of cases clearly predominated. Out of
212 cases received in 1876, there were 113 claims for wages and 51 matters concern-
ing domestic relations; and in 1877, out of 750 cases, 281 related to wages and 61
to domestic difficulties. Until 1890 the work grew steadily, but it remained routine
in nature.

At about this same time a similar but entirely independent and unrelated move-
ment was taking place in Chicago. As in New York the frauds perpetrated on immi-
grants called attention to their legally defenceless condition and led to the forma-
tion of a society to help them, so in Chicago the great number of seductions and
debaucheries of young girls under the guise of proffered employment aroused the
women of the city6 and led, through the instrumentality of the Chicago Woman's
Club, to the formation in 1886 of an organization which was the next year incorpo-

1 Constitution of 1877, Article I, § 2.

2 History of the New York Legal Aid Society (1912), page 4.

3 11 N. Y. Legal Aid Rev. No. 2, p. 2.

4 Holls: The Legal Aid Society, 8 Charities Review (1898), 15, 17.
6 The first report was published February 28, 1877.

6 Conover: The Chicago Protective Agency, 8 Charities Review (1898), 287.

136 LEGAL AID ORGANIZATIONS

rated under the title of The Protective Agency for Women and Children.1 Like the
New York society, there was no vision of a general rendering of legal assistance to
poor persons. By force of circumstances, however, the work did outgrow its original
limits, and although still confined to assistance for women and children, it was extended
to include all legal difficulties presented by such persons. From an extremely small
beginning of about six cases a month, the work rapidly grew to formidable propor-
tions. In 1890 there were 1455 cases, of which 349 were claims for wages. It was from
the outset the policy of this Protective Agency to charge no fees of any description.
Careful annual reports were published.

In 1888, on the initiation of the Ethical Culture Society of Chicago, there was es-
tablished in that city a second organization, which was named the Bureau of Justice.3
This was in fact the first true legal aid organization. It undertook to supply legal
services in all cases to all persons, regardless of nationality, race, or sex. It was in no
sense proprietary; its leadership, control, and support were not derived from any par-
ticularly defined group, and its income came from charitably disposed persons in the
general public. It adopted the policy of charging some fees to its clients. By reason
of its wider scope, its work increased by leaps and bounds, so that by 1890 it was
thrice the size of its sister agency. According to the third annual report for the period
March 1, 1890, to March 1, 1891, the cases numbered 3783, and the sum of $10,658.45
was collected for clients. Had the society in New York continued along its original
lines, the leadership in the legal aid movement would have devolved on the Bureau
of Justice, but even while these twin Chicago organizations were making their first
brave experiments, changes destined to affect profoundly the whole future develop-
ment of legal aid work everywhere were quietly taking place in New York.

Emerson has said, "Every institution is but the lengthened shadow of some one
man,'1 and nowhere is the truth of the statement more clearly illustrated than in the
relationship of legal aid work to Arthur v. Briesen. No history of legal aid work could
be complete if it failed to pay tribute to his courageous vision, his faithful leadership,
and his untiring labors in bringing justice within the reach of the poor, whom he
knew and loved. Mr. Briesen was not one of the original incorporators of the New York
Legal Aid Society. His connection with the work began in 1884, when his name
appeared on the slender membership roll. During 1889 he was a member of the law
committee, and at the annual meeting he was elected president for the year 1890, a
position to which he was annually reelected during the space of twenty-six years, and
which was terminated only by his resignation so that, in his own words, "younger and
stronger hands might take the helm.11

To understand the situation which confronted the new president, it is necessary
to review what the Society had accomplished up to 1890. The work had gone forward
steadily, increasing from 212 cases in 1876 to 3413 in 1882, and remaining nearly

1 Report of the Proceedings of the Fourth Conference of Legal Aid Societies (1916), page 137.

2 Wigmore : Additional History of Legal Aid Work, 1 Mass. L. Quarterly (1916), 288.

ORIGIN AND DEVELOPMENT 137

constant at about that figure through the next seven years. Monies collected for cli-
ents had steadily increased from $1000 in 1876 to $12,460.71 in 1882 and $20,104.20
in 1889. The Society had had great difficulty in collecting money for itself. Its total
expenses had been nearly $38,000, of which The German Society had contributed one-
fourth. The balance, except for a small income from fees, was contributed by a few
members, whose number averaged sixty-four. During these thirteen years the Society
had six times closed the year with a deficit. Until 1890 all the annual reports were
published in German, and from a statistical table showing the nationalities of appli-
cants, published for the first time in 1889, it appears that of the 3500 clients in that
year 2438 were natives of Germany, 346 were Russian Poles, 148 were Russians, 147
were Hungarians, and 31 were Americans.

Mr. Briesen not only breathed new life into this wavering institution, but he
brought to it a new vision of its wider usefulness. From his own struggles he knew,
and as he looked about him he saw, that injustice was not confined to Germans. He
saw that all nationalities, even native-born Americans, were daily obliged to lose clear
legal rights which they had no means to enforce. It was his creed that as all these
persons, whatever the country of their birth, had come to America to be Americans,
so the legal aid society should extend to all of them, irrespective of nationality, its
protection and guidance up to the furthest limit of its ability. By such stars was the
true course of legal aid work finally charted.

He at once set about to put these changes into effect. The annual report for 1890,
which was printed in German, following the usual custom, he translated and repub-
lished in English. By the act of translation the somewhat forbidding and formidable
title which the Society had borne was presented to the public in the more under-
standable form of "The German Legal Aid Society." Under the charter provisions
persons other than Germans had no right to assistance, and legally the Society had
no authority to expend its funds in their behalf, but by 1889, such persons finding
no relief in the courts or from law offices were seeking the Society's help in large
numbers, and, as Mr. Briesen wrote in his report,1 "without special instructions, the
attorney, following the dictates of humanity, found himself obliged to extend his field
of operations to all sufferers." To regularize this situation and in accordance with
his belief, he persuaded the directors to change the constitution by omitting the
words " of German birth." Inasmuch as the policy of charging small fees had for some
time been determined upon, a further minor change of qualification was made. The
amended purpose clause, as adopted in 1890, read: 2 "Its object and purpose shall be
to render legal aid and assistance, gratuitously if necessary, to all who may appear
worthy thereof and who, from poverty, are unable to procure it." This was the lan-
guage of a real legal aid organization ; but the change was not made without a strug-
gle. Many of the directors did not understand Mr. Briesen's belief; The German So-
ciety withdrew its support; but his faith was rewarded, for by the end of the year

1 15 N. Y. L. A. R. 3. 2 Constitution of 1890, Art. I, § 2.

138 LEGAL AID ORGANIZATIONS

1890 the Society's support had widened and its membership increased from 81 to
170 subscribers. Mr. Briesen saw that the Society not only had a direct contribution
to make to the administration of justice, but that it stood in a peculiar relationship
to the bar. He spread the knowledge of this new organization among lawyers, and
from them he asked assistance. For the first time the bar began to get an inkling of
what its purposes were, and slowly, by dint of much persuasion, the larger firms were
enrolled as members. In the report for 1890 a table was submitted, showing the size
of the claims collected for clients, which serves as an interesting reflection of the
character of the work. Of 507 claims collected, 350 were under ten dollars, 127 were
between ten and fifty dollars, 13 were between fifty and one hundred dollars, and 17
ranged upwards to about five hundred dollars.

Although from its inception the Society was obliged to face much criticism and
indifference, its first enemy appeared in 1893 in the guise of a fraudulent legal aid
society. Such an attack was inevitable, and it was the precursor of similar attacks,
which were repeated in following years until stopped by legislation.1 As the Society
built up its reputation for honesty and square dealing, the phrase "legal aid" came to
carry a very clear connotation of safety and relief to the minds of the poor. The shy-
ster element at the bar was not slow to see that there was a magic in the words which
could be capitalized into a cash value. A number of associations, carrying the phrase
"legal aid" as a part of their title, sprang up, and like wolves in sheep's clothing
went about seeking whom they might devour. It was a difficult moment for this rela-
tively new and generally unrecognized Society. Had it failed to stand its ground, its
fair name, its greatest asset, and its only way of reaching the poor, would have been
lost and "legal aid society" would have become a term of obloquy even as it has
in England. The directors fought this dangerous situation by seeking relief in the
courts, and it is to the credit of the judges that they perceived the true condition and
protected the Society in its title by enjoining the use of the words "legal aid" for
any purpose calculated to deceive or mislead the poor.2

In 1894 the legal aid idea took root in Jersey City.3 No definite organization
emerged for many years and the work remained small in scope, but the circumstances
of its establishment reveal how local the legal aid plan was even after eighteen years
and how slowly it made headway. Although Jersey City is directly across the Hud-
son River from New York, and although the society in New York had existed since
1876, the Jersey City organization was created in entire ignorance of its near neigh-
bor. It was modeled after the "Poor Man's Lawyer" at the Mansfield Settlement
House in London, which was known to the founder of the Whittier House Settlement
in Jersey City because she had lived in London. For years the two kindred efforts
existed side by side, each without knowledge of the other.

1 See 18 N. Y. L. A. R. 7 ; 23 Ibid. 9 ; 28 Ibid. 8; 31 Ibid. 16: 32 Ibid. 11; 6 N. Y. Legal Aid Rev. No. 3, p. 19.

2 For the injunction in the ease of The Legal Aid Society v. The Cooperative Legal Aid Society, see 28 N. Y.L. A.R. 8.

3 Cf. Twenty-second Annual Report of the Whittier House Association (Jersey City, 1916), page 14.

ORIGIN AND DEVELOPMENT 139

Several noteworthy developments took place in New York during 1896. For the
first time a retaining fee of ten cents was asked of applicants who were able to pay
that amount. The directors expressed their purpose to be that "of removing the sting
of charity from the applicants, and of making the client feel that the assistance ren-
dered was in the nature of a regular business transaction."1 This fee has been contin-
ued ever since. The Society's internal organization was placed on a better basis. Ori-
ginally, the attorney had received a salary and was allowed to engage in private prac-
tice. Later, the attorney was given a lump sum, out of which he engaged all his assist-
ants and paid all expenses, retaining the balance plus a proportion of the fees as his
salary. In 1896 the Society placed the attorney on a definite salary, required all his
time, and itself paid all expenses under a budget. This plan was adhered to, and
served as a precedent for other organizations in later years as to the proper rela-
tionship between a society and its attorney. Most important, the idea of Americaniz-
ing the Society, which Mr. Briesen had steadily advocated,2 was finally consummated
by a charter amendment under which the Society dropped its German title and
became simply "The Legal Aid Society."3 By this act renewed emphasis was placed
on the fact that the organization offered its assistance to all persons irrespective of
nationality and, reciprocally, it asked for wider support from all persons. This was
not promptly forthcoming, but it managed by diligent work to increase its income
sufficiently to meet its fast rising tide of applications.

The records show a decrease in cases in 1897, but this is due only to a change in
the recording system whereby advice cases were not listed or recorded.4 In fact, the in-
crease was so great that in 1899 it was found necessary to open three branch offices:5
a Seamen's Branch, which instantly took a commanding position and proved to be a
very haven of refuge for "poor Jack;" a branch in the University Settlement, which
later became the East Side Branch ; and a Women's Branch, which later moved and
became the Up-Town Branch.

When the nineteenth century drew to its close, the idea of organized legal aid work
had been in existence for twenty-four years, and yet it had taken root in only three
American cities. Of its span of life from birth up to the present moment, more than
half had passed with a record of achievement of only three legal aid organizations
established, whose combined work in 1889 aggregated only 10,425 cases. Each was
struggling with financial difficulties, and the general outlook was by no means hope-
ful. Perhaps the most encouraging fact that appeared at the close of this first era
was the statistical record, which proved that Mr. Briesen's belief that Americans needed
assistance as well as Germans, that citizens as well as immigrants were the victims
of injustice, was absolutely correct and that his desire to make the legal aid society

1 History of the New York Legal Aid Society, page 15.

2 See his statement in 1891 in 16 N. Y. L. A. R. 14.

3 Constitution of 1896, Art. I, § 1: "The name by which this Society shall be known in law is The Legal Aid Society."

4 22 N. Y. L. A. R. 3. 6 24 Ibid. 7.

140 LEGAL AID ORGANIZATIONS

an American institution was realized. In 1889 the application lists showed 2569 na-
tives of Germany and 2317 natives of the United States. From that time on, in steadily
increasing measure, the largest number of applicants were Americans, who sought a
relief which their own institutions failed to provide.

§ 3

The first decade of the new century gave indications that organized legal aid work

was to develop into a national project. The expansion was not rapid, but it went on

steadily, and by 1910 organized legal aid work was reasonably well estab-

_, . lished in all of the larger cities of the east. This development was not

due to any propaganda or missionary work. There was no central organ-
1 900-09 . . . r . J ., ,

ization which consciously planned, or led, or built up the movement. The

growth came about because in the larger cities persons in different walks of life and in
their various associations, such as the charities, churches, bar associations, women's
clubs, and the like, found themselves confronted with the pressing problem of how
to obtain justice for poor persons who came to their attention. The older solution
of taking the individual case to some kind lawyer was not only becoming unsatis-
factory to all concerned, but was rendered out of the question by the greatness of the
demand, which no private office could undertake to meet. There was a certain vague
knowledge abroad that something was being done in New York, no one understood
precisely what it was or exactly what Mr. Briesen was driving at, but to New York
they all turned for instruction.

It is this fact which makes the development of ideas about the work in New York
of such great importance, for those conceptions were largely copied, often for no
other reason than that New York did its work in that particular way. The mistakes
of New York became the faults of the entire movement, but as most of its plans and
rules and tendencies, under Mr. Briesen's inspiration, were of the highest order and
in the main correct, the New York pattern of organization, which was widely copied,
proved an excellent model. It is due to this fact, and not merely because of its size,
that New York has deservedly been supreme in the legal aid world. As one reviews the
history and sees the accomplishments of this society and that society it becomes
increasingly clear that the New York organization has justly earned its title of The
Legal Aid Society.

In 1900 a group of attorneys in Boston, all closely identified with the Bar Asso-
ciation, felt a clear demand by the poor of the city for the assistance of counsel, and
decided to form an organization like that in New York. In April a charter of incor-
poration was granted, which stated the title to be " The Boston Legal Aid Society."
Up to this time there was no standard nomenclature; there was one Legal Aid Society,
one Protective Agency, one Bureau of Justice, and one Poor Man's Lawyer. With its
adoption in Boston, and later elsewhere, the term "legal aid" grew into the standard

ORIGIN AND DEVELOPMENT 141

and uniform name for this sort of organization. It has become something akin to a
trademark. The new society in Boston took over what appeared to be the New York
policy and decided to reject criminal cases.1 The most important thing about this
society is the fact that its initial impulse came entirely from the bar.2 For the first
time an object lesson was afforded of the definite relationship between legal aid
work and members of the bar. It is true that the relationship was put on the narrow
ground of providing an agency to relieve private offices of their charity cases, but it
did plant a seed which is now beginning to bear fruit throughout the country.

The New Jersey Legal Aid Association came into existence in 1901. The facts
about this organization are not entirely clear. Plans were begun in 1897 to bring
about a state instead of a city organization, and this was carried through in name,
but the object was not realized. The Association became in fact the legal aid society
for Newark, and although when the society was incorporated in 1907, the state name
of "The New Jersey Legal Aid Society" was retained, the organization was, and is,
a local organization doing its work in Newark. It does not control the work in Jer-
sey City or Hoboken, and it never established societies in Trenton, Paterson, or else-
where. It conforms more to fact, and is less confusing, to consider this organization
as the Newark Legal Aid Society.

In March, 1901, the New York Labor Secretariat, a specialized form of legal aid
work which has failed to make headway in this country, was formed. Germany had
learned of organized legal aid work from New York, and the idea had promptly been
put into general effect, with the modification that the agencies which established
legal aid bureaus were religious groups, political parties, and labor unions. From Ger-
many the conception of a labor union legal aid society came back to New York and
the Labor Secretariat was created. Its work is in every respect like that of a legal aid
society, but its membership is restricted to persons in unions which have joined the
plan. It is a cooperative idea closely resembling the similar arrangement more gen-
erally in vogue for providing physician's services. The Secretariat plan was never for-
mally extended beyond New York, and it is perhaps fortunate, for if legal aid work
had developed along class or group lines, its real position in the administration of jus-
tice, the essentially public nature of its service, would have been obscured.

Philadelphia was next in line, following closely the New York pattern, and get-
ting under way in September, 1902. A description has been written3 which merits
quotation, for it conveys a picture of the meagre way in which most legal aid organ-
izations were obliged to begin, and of the precarious hold which they had in the com-
munity at their start.

"All of the multitude of charitable organizations for which the city of Phila-
delphia is famous, agreed that there was no opening or necessity for such a
society. One of them, the Society for Organizing Charity, showing that its bark

1 1 Boston L. A. R. 9. ' See A Lawyers' Legal Aid Society, 23 Case and Comment, 1008.

3 Report of the Proceedings of the First Conference of Legal Aid Societies (1911), page 7.

142 LEGAL AID ORGANIZATIONS

was worse than its bite, loaned the Legal Aid Society a room down in the slums
for use without charge two evenings during the week. There the first attorney
met clients at a temperature which hovered somewhere near zero, as the Society
for Organizing Charity was not able to supply heat. The attorney was accus-
tomed to advise clients in an ulster and gloves. The Provost of the University
of Pennsylvania subscribed the sum of $25 for incidental expenses, such as post-
age, stationery, and costs. On this equipment, namely, a fireless room, $25, and
a couple of enthusiastic young attorneys, the Legal Aid Society of Philadelphia
began its work."

In the same year a committee was formed in New Rochelle to furnish legal assist-
ance in that city and in Westchester County. In October the Educational Alliance
of New York, located on the East Side, where it was in a position to reach the vast
Jewish and Russian immigrant population, undertook legal aid work, for which it
had felt the need for several years but had lacked the necessary funds, by establishing
within its organization a Legal Aid Bureau.1 It was planned to confine the services
to advice, conciliation, and arbitration. It soon appeared, however, that such a limi-
tation was untenable,2 for in the worst cases of injustice court action is generally the
only solution. Curiously enough, while this effort to reach the Jewish population in
New York's East Side by means of an independent organization instead of by exten-
sion of the existing organization was being undertaken, a parallel development was
taking place in Chicago with a view to bringing legal assistance to the large Jewish
population in Chicago's West Side. The Bureau of Personal Service, which had started
in 1897, had not found its proper sphere of usefulness until in 1902 it saw the great
existing need and entered the field of legal aid work. From the point of view of ideal
arrangement it is regrettable that this duplication of organizations arose, but in fact
there was no duplication of work, for the new organizations entered new fields. As the
older organizations in both New York and Chicago lacked the financial strength to
answer completely the great demand for legal assistance, these new agencies became
valuable allies, and justified their creation by accomplishing a vast amount of work.

Two important contributions on the side of more accurate records were made by
the attorneys for the Boston society during 1902. Up to this time the records of the
work included only the number of clients, their nationalities, the nature of the cases
presented, and the amounts collected for clients. To this the Boston attorneys added
a table showing the sources from which the clients came.3 The value of this information
to the proper development of the work was quickly appreciated. It was adopted in New
York in 1905,4 and thereafter was generally utilized. Even more valuable, there was
added a table showing the disposition of all cases.5 Other organizations had recorded
the dispositions of court cases, but none had classified and published the results of the
work in all cases. Logically, it would seem that a complete record of dispositions is
a necessary complement to a record of cases received, as necessary as the disbursement

1 7 Educational Alliance R. 20 ; 10 Ibid. 31. * 13 Ibid. 48.

3 3 Boston L. A. R. 24. 4 30 N. Y. L. A. R. 35. c 3 Boston L. A. R. 12.

ORIGIN AND DEVELOPMENT 143

side of a cash-book, if any balance or estimate of results is to be had; but this im-
portance has never been grasped. Boston itself discarded the method, and not until
1907 was it definitely established. The older organizations and the majority of the
newer have never adopted any classification of dispositions, chiefly because New York
was the recognized leader and its system was generally followed.

During 1903 no new organizations were formed. An innovation was made in New
York by the publication of a quarterly review of legal aid work. The directors be-
lieved the subject was of such intrinsic worth that if information about it could be
brought home to the public, the needed financial support would be forthcoming. A
printed monthly statistical report was sent to all members as a first experiment, but
this proved dry reading. The idea of a quarterly review which should contain, in
addition to a statistical statement, the stories of interesting cases and leading arti-
cles was hit upon, and in April, 1903, The Legal Aid Review, of eight pages, made
its initial appearance. The Review, which has ever since been continued, proved to be
of more than local value. It carried notes on the development of the work in other
cities and provided a medium for many excellent articles dealing with legal aid work
and its significance. It was analogous to any trade or professional journal and it
served the same purposes. To the existing organizations there was made available
information concerning methods for conducting the work, of which they needed all
they could get, a community of interest was fostered, and the message in this compact
and readable form was carried far and wide into new fields.1

Three organizations were added to the growing list in 1904. Atlanta produced a
society which did good work and gave every promise of a sturdy development.2 In-
terest subsided, however, and the enterprise languished and disappeared. This was
the first death in the otherwise healthy legal aid family, and it was the more un-
fortunate because this was the first foothold in the South. In Cleveland a group of
lawyers and the Jewish Federated Charities, both finding an imperative need for some
definite plan for providing legal services, happily discovered each other and in com-
bination set up the splendid Cleveland Legal Aid Society.3 Up to this time nearly
all of the organizations were of the same mould and conformed to type, but in Den-
ver a departure was made of much interest in the field of legal education,4 when the
local law school started "The Legal Aid Dispensary of Denver." The instructor in
practice was made the attorney and the senior students were used as his assistants.
The plan was too successful and had to be abandoned. The character of the service
given was so high that hundreds of persons applied. The rising cost entailed thereby

1 Chicago at one time published a Legal Aid Review, which was discontinued, and since 1912 has published a Bul-
letin. This is issued only at irregular intervals. It has never attained the position or exercised the influence of the
New York Review.

3 Atlanta Constitution for September 5, 1904, quoted in 2 N. Y. Legal Aid Review, No. 4, p. 2.

3 Work was begun in January, 1904. The Society was incorporated in May, 1906.

4 This is the first "legal clinic." This matter is beyond the scope of this report, but is discussed in a separate pam-
phlet entitled "Legal Aid Organizations and Legal Education."

144 LEGAL AID ORGANIZATIONS

exceeded the funds at the disposal of the law school, and as neither the lawyers nor
the charities would help, the project was discontinued in 1910.

During the next five years, from 1905 to 1909, both inclusive, the progress con-
tinued steadily. On June 15, 1905, the Bureau of Justice and the Protective Agency
were wisely consolidated into the Chicago Legal Aid Society. As each had widened
its scope to meet the increasing demands, the jurisdictions of the two became nearly
identical, so that the merger was the only sound business course. Later developments
demonstrated the fact that the strength of one combined organization would exceed
the total strength of its component parts. As these two original Chicago organiza-
tions do not again enter into our discussions, it is convenient at this point to sum-
marize their accomplishment. The Bureau of Justice in its seventeen years1 enter-
tained 66,616 cases, collected S87,067.05 for its clients, and expended 875,449.11 in
the prosecution of its work. The Protective Agency for Women and Children during
nineteen years, with one year's figures missing,2 cared for 39,341 matters, collected
for clients a total of $38,844.98, and expended S52,469.39.

New York opened its Harlem Branch in 1905, and in 1906 tried to start a Crimi-
nal Branch, or at least to provide some assistance in the inferior criminal courts, but
as the needed funds could not be secured, the criminal work was reluctantly aban-
doned. The failure of the Society to extend its legal aid into the criminal field and
thereby to meet the need which in recent years has called the public defender into
being was not due to lack of perception but to lack of funds. Nevertheless the fact
gave the legal aid movement a twist away from criminal work. Other societies, lack-
ing in experience and not clearly understanding the position of legal aid work in its
relation to the administration of justice, saw that criminal cases did not appear in
the New York reports and blindly adopted what they supposed was some rule or pol-
icy against such work.

In 1907 New York opened an office — its fifth branch — in Brooklyn. Financial
stringency caused this to be closed the next year, but in 1910 it was permanently re-
opened. Cincinnati set up an organization in 1907, Pittsburgh followed in 1908,3 and
Detroit in 1909. This last is of interest because it was established and supported bv
the Association of the Bar of the City of Detroit. Thus for the first time, after thirty-
three years, the bar in its collective capacity took a part in this movement for mak-
ing justice more accessible to the poor.

1 These figures are complete except for the half year January 1, 1906-June 16, 1905, for which period no report was
ever made.

2 The report for the period April 1, 1893-April 1, 1894, being the Eighth Annual Report, is missing.

3 In 1908 an association bearing the legal aid name was formed in Los Angeles. No reports were ever published. No
attorney was ever put in charge of the work. It did render a certain amount of service until 1914, when the Public
Defender's office took over all such work. From such evidence as is available it is proper to exclude it from the field
which is of concern to us as not being a definite organization.

ORIGIN AND DEVELOPMENT 145

§ 4
The third era consists of a four-year period in which the territorial expansion of the
work went ahead very rapidly. Whereas in 1909 there were fourteen definite organi-
zations in existence, by the end of 1913 the number had doubled to
twenty-eight. As the preceding period marked the establishment of
legal aid organizations in the East, so this is primarily the period of
^ ~ extension into the Middle West — Kansas City in 1910, St. Louis, Akron,

and St. Paul in 1912, Duluth, Minneapolis, and Louisville in 1913. A further pene-
tration of the eastern field went on at the same time. Baltimore and Rochester were
added in 1911. New York, now possessed of two organizations with five branch
offices, added further to its legal aid equipment by the establishment of the National
Desertion Bureau. This organization, created by the National Conference of Jewish
Charities to combat the growing evil of family desertion, represents a specialized
legal aid organization and affords a striking illustration of the efficiency that attends
specialization of work. In 1912 a strong society was started in Buffalo, and in the same
year two young men who had learned of the idea in the East started a small but
valuable society in Colorado Springs.

The year 1913 marked the second attempt to plant legal aid work in southern
fields. In New Orleans an organization was fostered by the Louisiana Bar Association,
which has managed to hold on although its development has been disappointing. In
the industrial city of Birmingham a legal aid bureau was opened as a branch of the
Lawyers1 League, an association of lawyers formed for social and civic betterment.
The bureau was never very active and when the Lawyers' League died it also succumbed.

Students in the Harvard Law School organized in 1913 a legal aid bureau in Cam-
bridge, which not only served as the first representative of a new type of organiza-
tion, but also brought into life again the question of a possible cooperation between
legal aid and law schools. In Minneapolis, which has already been mentioned, under
the guidance of Dean William R. Vance of the University of Minnesota School of Law,
an alliance was made between society and school which operated to mutual advantage
and served again to bring into prominence the question of a legal clinic, which by this
time had been reluctantly given up in Denver.

An outstanding fact of the development during this third era was the change
which took place in the predominant type of legal aid organization. Up to 1910,
of the fourteen societies that attained permanence, ten were organized as private
charitable corporations. From 1910 through 1913, of the fourteen societies that
lasted, eight came into being as departments of organized charities. Leaving aside
Colorado Springs, which represents a venture of eastern men rather than any western
impulse, a glance at the map shows that, with one exception, the legal aid movement
had not pushed farther west than the Mississippi River by the end of 1913.

Kansas City, Missouri, was the exception, and it was also an exception in a more

146 LEGAL AID ORGANIZATIONS

important than a territorial way. Hon. Frank P. Walsh, then a practising attorney
in Kansas City, and later Chairman of the United States Commission on Industrial
Relations, was interested in the work of the Board of Public Welfare which had been
created by the city to take care of prisoners and to supervise parole. Mr. Walsh had
visited the legal aid societies in New York and Chicago, and he knew from his own
practice that there was a similar need in Kansas City. He conceived of the idea of
placing such work under the supervision of the city's Board of Public Welfare. Six
attorneys were found who were willing to devote two hours each on one day a week.
Under this plan the office was opened on August 10, 1910. On the first day there were
twenty applications, and the volume of the work clearly showed that a more perma-
nent arrangement was necessary. Accordingly on September 15 the Board of Public
Welfare appointed one attorney to devote all his time to the work, gave him a sal-
ary, and supplied him with assistants.1 No special ordinance was passed; the Welfare
Board acted under its general authority and drew the necessary money from its gen-
eral funds.2

This was a step of profound importance, destined to influence the entire history of
legal aid work and probably destined to affect the whole course of the administration
of justice. This public Legal Aid Bureau challenged the long accepted conception,
on which our civil administration of justice was built, that the state's duty ends when
it has provided judge and court house, and that it has no interest and no right to
take a part in private litigation. Here in Kansas City for the first time an American
community put the ideal of the fundamental law into practice and saw that no one
was denied justice because of inability to employ counsel. As it has rather aptly been
put, "By the organization of the Legal Aid Bureau, justice in this city has been
placed on the free list with religion, education, and health."3 The significance of a
public society was not at once grasped, nor was it followed for awhile. But the vigor
of the idea proved itself when at the end of its first full year the Kansas City Bureau
took third rank among the then existing nineteen legal aid organizations, easily out-
distancing societies in larger cities which had had more time for growth, as in Bos-
ton, Cleveland, and Philadelphia. This undertaking of legal aid work by a municipal
government and the payment of expenses out of the public treasury made a deep im-
pression in the legal aid world. It is not to be wondered that its full significance was
not at once appreciated, for it is a long step from thinking of a legal aid society in
terms of a charity and as a place where lawyers may send their charity cases, to con-
ceiving of it as a department of government and a part of the public administration
of justice. Kansas City stood as an object lesson, and because of it the thought of the
leaders in the movement in various cities began to crystallize as to the true function
and position of a legal aid organization.

1 1 Kansas City L. A. R. 3.

2 Report of the Proceedings of the Tliird Conference of Legal Aid Societies (1914), pages 38, 39.

3 2 Kansas City L. A. R. 1.

ORIGIN AND DEVELOPMENT 147

One other important development took place during this period. Very slowly there
had been growing up among the various organizations a feeling of comradeship and a
realization that all were engaged in a common enterprise. In 1911 this took the prac-
tical shape of an invitation from Pittsburgh to meet to discuss common problems
and the advisability of a central organization. Thirteen societies responded by send-
ing delegates. The discussion1 disclosed that there were many practical reasons for
the formation of an alliance. A central office could lead in propaganda work in new
fields and could provide a clearing house through which cases could be transferred
for action from one city to another. Legal aid work was developing in Europe and the
movement had assumed an international character, so that there was need of some
official to whom foreign legal aid societies could send cases for reference to the proper
local society. It was further pointed out that, by combining, the legal aid societies
might take a part in national problems and in remedial legislation. Such beneficial
results were so obvious — indeed they had earlier been presented by New York2 — that
it is remarkable that the union was not effected sooner than it was. As a result of
this first conference in Pittsburgh a committee was appointed to draw up a plan for
a permanent central organization.

A second conference was held in New York in 191 2, at which time the National Alli-
ance of Legal Aid Societies was formed, and a constitution and by-laws were adopted.3
As has generally been the case in the history of American institutions, this initial
attempt at federation resulted in producing a very weak central body, lacking both
the funds and the power to provide any real leadership. Legal aid work having de-
veloped entirely as a local growth, it was inevitable that local feeling should run high
in the sense that each organization was afraid to surrender any authority to a central
governing body. The Alliance has called two conventions, one at Chicago in 1914 and
one in Cincinnati in 1916, and its president has done some work in foreign cases, but
beyond that it has amounted to nothing.

The fourth period, consisting of the last four years up to 1918, constitutes the most

remarkable chapter in the entire history. The idea spread very rapidly, reaching out

„7 _ T to the Pacific Coast and into the Southwest, until nearly all of the
1 he rourth . ...,__., 0 . , . ,. . , , , .,

. larger cities in the United States had established legal aid organiza-

. „, . . „ tions. Whereas in 1914 there were twenty-eight societies, in 1917 there

I yl 4—1 8 .

were forty-one societies, among which number are included two public
defender organizations doing civil as well as criminal work, and in addition there

1 The complete discussion is contained in Report of the Proceedings of the First Conference of Legal Aid Societies

(1911).

231N. Y. L. A.R. 19.

8 These are contained in Report of the Proceedings of the Second Conference of Legal Aid Societies (1912) page 17.

148 LEGAL AID ORGANIZATIONS

were four public defender's offices confining themselves to criminal work. In nineteen
other cities the idea was welcomed and, although definite results are not yet apparent,
from some of these places new organizations will soon emerge. In all cities where
legal aid had been established the work continued to increase steadily.

The most important fact in this last period is that the prevailing type of organ-
ization shifted to that of the publicly controlled, publicly supported bureau. In 1914
the Los Angeles Public Defender's office, charged also with the responsibility of civil
work, was opened, and the woi'k in Duluth was taken over by the city. In 1915 the
municipalities took over the work in St. Louis and Dayton, and in Dallas the Board
of Public Welfare created a Free Legal Aid Bureau. During the same year public
defenders were established in Los Angeles (for the police court), in Omaha, and in
Portland, Oregon, in which last city the official was so besieged by applicants for
civil assistance that perforce his office became a regular legal aid society. In 1916 the
city of Omaha established a public society, the people of Hartford voted on refer-
endum to have a municipal legal aid bureau, and in Columbus a public defender
was provided.

In Washington and New Haven the Harvard plan of a law school legal aid society
was put into effect by students in the George Washington and Yale Law Schools.
Strong organizations came into being in San Francisco and Milwaukee, and lesser
but still important societies were started in Columbus, Nashville, Plainfield, Rich-
mond, and San Diego. In Jersey City the work, which can be traced back to the
" Poor Man's Lawyer" at the Whittier House Settlement in 1894, blossomed out and
produced a full-fledged society. The last event in the period covered by this report
was the establishment in New York in 1917 of a splendid organization to provide
legal aid in criminal cases, called "The Voluntary Defenders Committee," which serves
to round out the legal aid equipment of that city by carrying the work into the
criminal field, which none of the other societies had been able to reach.

§ 6

The history of the movement for organized legal assistance to the poor is that of
a conception possessing great intrinsic value which could earn appreciation only with
. the passage of time. After a painfully slow beginning during a period of
twenty-four barren and almost stagnant years, the idea pushed forward grad-
ually, but nevertheless steadily, for the space of ten years, and then for seven years
raced ahead with constantly accelerating velocity. From period to period the advance
has been in geometric progression.1 The high tide of territorial expansion has been
passed, but the momentum has by no means subsided.

Side by side with this territorial expansion, and keeping pace with it, there has

1 See the table showing the increase in number of organizations and in cases, post, page 162.

ORIGIN AND DEVELOPMENT 149

gone on a steady evolution of thought about the work. The beginnings of a tech-
nique as to how the work may most effectively and efficiently be done have been made.
More important, there has gradually been dawning a clearer conception of the mean-
ing of organized legal assistance to the poor. The movement has passed through three
stages and is entering a fourth. From its original position as a sort of proprietary
organization with the narrow mission of aiding only a limited group, it broadened
out and took on the stature of a charity, anxious to help all who needed its assist-
ance, but still viewing its object as that of dispensing legal assistance as other char-
ities dispense material assistance. Thence it emerged onto a higher plane, where it
understood that in its daily work it was not so much giving anything to the poor
as it was obtaining for them their just dues; that it was not dispensing charity, but
was securing justice.

The mind of the bar and of the community in general has not advanced beyond
the second stage. To most persons a legal aid organization is still a charity. The di-
rectors of legal aid societies and the attorneys in charge have nearly all, through
their closer contact with the work, come to an appreciation of the fact that they are
engaged in essentially a public undertaking, and that they have a part in the admin-
istration of justice.

The last development, which is the fourth stage in the evolution, regards the or-
ganized legal aid movement not as a thing apart or as a thing unto itself, but rather
as an important and contributing factor in a greater movement — a movement
embracing the reorganization of courts, the simplification of procedure, and all the
remedial agencies and methods examined in Part II of this study — for the better-
ment of our administration of justice. It recognizes that legal aid work, even at its
best, is not the whole solution or the only solution, and that it can reach its own
maximum strength only in alliance with the other forces and agencies about it, pre-
ferring them where they are the more efficient, supplementing them where they fail.
In this light legal aid work ceases to be an end in itself; it becomes merged in a
great design according to which the whole administration of justice is to be rebuilt
and reshaped to the end that denial of justice, so far as we now understand it, may
cease. The majority of those identified with the work have not yet recognized or
consciously accepted this last conception ; but in the reports which are now being pub-
lished and in the character of the work being undertaken there is ample evidence
that shortly it will be accepted as the guiding principle for the future.

Note: In this chapter all the definitely established legal aid organizations have been mentioned. For
a complete list, both of organizations in existence and those in process of formation, alphabetically
arranged and giving the names of officers and addresses, see 15 N. Y. Legal Aid Rev. No. 3 (July,
1917), pp. 13-15; 24 Case and Comment (August, 1917), 216-218. The earlier lists published in 8 Pitts-
burgh L. A. R. 27; 11 Chicago L. A. R. 37; and Report of Proceedings of the Fourth Conference of
Legal Aid Societies (1916), page 156, are now inaccurate.

Chapter XVIII
WORK OF THE LEGAL AID ORGANIZATIONS

I have known about the Legal Aid Society for some years, but
it conducts its affairs so quietly and so unostentatiously that
I did not know, until the other day, how extensive is the work
it is doing. It stirs one's blood and compels one's deep homage
to read the great figures ! Mark Twain.1

. . .§1 .

THE final test of any organization lies in its accomplishment. This challenge the
legal aid organizations are not afraid to meet. To make a compact presentation
of the work that has been done, one is necessarily driven to the use of statistics, but it
_ should be remembered that figures, however great, are incapable of por-

^ traying results in terms of human happiness and welfare. An idea of
this larger benefit can be obtained to a limited extent by examining the individual
cases that are presented in the reports of the legal aid organizations. These, if col-
lected, would fill several volumes, and still they would represent only an infinitesimal
part of the good which has been achieved. This human side of the work, the splendid
efforts that have been made, the encouragement, comfort, and help which have been
brought to those in trouble, the far-reaching effects of this practical ministration in
accordance with the American ideal of justice and fair play, — such things will never
be presented in their full force until there appears a Dickens to write a twentieth
century version of Bleak House or a Hugo to depict the struggles of a modern Jean
Valjean.

The essence of the work of legal aid organizations is the rendering of legal advice
and legal assistance to the individual in the individual case. It is for this purpose that
they exist, and it is with such work that we are here concerned. Out of the individ-
ual case work there grows other work, more general in its nature, such as the support
of remedial legislation, cooperation with the charities, and service to the community
in driving out the loan sharks. These matters are secondary and may be postponed
for later consideration.2

If ever there was an occasion for the use of statistics without an apology or justi-
fication, it exists in connection with legal aid work. It is high time that the figures
were presented and that attention be called to them. Feeling themselves bound by
professional ethics, the societies have never exploited their work in individual cases,3
and as a matter of policy they have preferred to do their job "without noise or osten-

1 From a letter written December 12, 1905, to Mr. Louis Windmuller, Treasurer of the New York Legal Aid Society.

2 Chapters XXI to XXV deal with work in this broader field and with the relationships between legal aid organi-
zations and the law, the community, the charities, and the bar.

3 See A Lawyer's Legal Aid Society, 23 Case and Comment, 1008 ; Report of Proceedings of the Fourth Conference
of Legal Aid Societies, page 36.

THEIR WORK 151

tation."1 As a result, in the community at large and even among the members of
the bar, the work is very little known and has received but scant acknowledgment.
It has been done so silently and it has gone ahead so quietly that a statement of the
dimensions to which it has attained is in the nature of a revelation.

§ 2
The forty-one legal aid organizations of the United States, as their contribution
toward making more equal the position of the poor before the law, have provided at-
TJ Til torneys to 1,133,700 persons, have collected for their clients sums ag-
\xr j, gregating $3,590,681, and to accomplish this work they have expended

$1,573,733. These are minimum figures. All estimates and conjectures
have been excluded. If all the figures could be known, the number of clients would be
considerably increased. If it were possible to estimate the amount which clients have
received from weekly orders secured for them by legal aid societies, the figure repre-
senting collections would probably be doubled. Orders and decrees for the support of
wives and children and findings under the compensation acts all call for weekly pay-
ments. The former run indefinitely, they may remain in force as long as the person
lives, but it is impossible to know or estimate with any accuracy how much is paid in
accordance with their terms, for these payments by husbands are both irregular and
uncertain. The latter continue throughout the period of disability up to ten years,
payments are certain, but as the date when an injured man returns to work and com-
pensation stops is almost never known to the society, no computations are possible.
All that can be offered is opinion, and the best opinion is that if such actual pay-
ments were known, they would swell the total collections to seven million dollars. Tak-
ing the figures as they stand, they offer ample evidence of the inadequacy of the tradi-
tional administration of justice in itself to protect the rights of the poor through law.
Without organized legal aid, what would have been done for these hundreds of thou-
sands of persons who were justly entitled to several millions of dollars?

While the height of territorial expansion has been passed, the volume of work has
by no means reached its zenith. In the last six years the work has doubled, and the
increase is due not only to the creation of new organizations, but also in a very appre-
ciable measure to the growing work of the older societies. How vast the work will be
at the end of the next decade no one can foretell, but it is certain that the develop-
ment is still going on apace. Complete figures showing the increase in case work, in
collections for clients, and in expenses, year by year for each organization and in total
for all organizations, are contained in the three statistical tables appended to this
report. A condensation of these tables shows that the work has grown as follows :

1 This description was applied in an editorial in the Outlook for July 18, 1903. Quoted in 1 N. Y. Legal Aid Rev.
No. 3, p. 3.

152 LEGAL AID ORGANIZATIONS

Tear

Number of
Organizations

Cases

Collections
for Clients

Expenses

1876

212

$1,000

$1,060

1885

3,802

17,711

2,870

1890

9,316

47,580

11,953

1895

16,128

66,341

14,312

1900

20,896

101,970

21,669

1905

33,352

80,020

42,734

1910

52,644

166,851

76,602

1912

77,778

217,532

119,705

1914.

109,048

268,849

160,189

1916

117,201

340,199

181,408

§3

The nature of legal aid work has already been pointed out in general terms in earlier
connections. Writing in the light of experience gained in a hundred thousand cases,
_ the attorney for the New York Society thus expresses it : 1

tl Wo k "What is Legal Aid Work? What kind of work do you do? How

often these questions are asked each year, and surprising as it may
be to some, there are thousands in this City of ours, who are not only unfamiliar
with our purposes, but to whom our existence is unknown.

"From birth to death, the poor man is the prey of a host of petty swindlers.
He is educated to believe that justice is free and he finds that to get it, he must
pay a lawyer a price he cannot afford. It has often been said that only the poor
know the sorrows of the poor. This may be so, but I believe that only the Legal
Aid Society knows their wrongs. Unless injuries and unfairness to the poor man
are punished, he feels that justice is not for him, and that he has not the same
opportunity and protection as the rich man ; he becomes anarchistic. The fun-
damental object of our Society, therefore, is to see that all, no matter how poor,
or how oppressed, shall get justice. We care nothing for race, sex, color, creed,
or previous condition of servitude; we do believe that the laws mean something
and our work is to see that they mean the same for the poor that they do for the
rich. Let me emphasize that the Society does not give charitable support to needy
persons, but only justice and the enforcement of just and honorable claims."

The scope of the work is confined to the field of legal action. The societies are en-
gaged in the practice of law and not in social service work as that phrase is gener-
ally used. More closely than anything else, the work resembles the work of an attor-
ney engaged in general practice, the chief points of difference being in the matter of
fees and in the number of cases. To many of the innumerable questions which are
asked the attorneys give answers based as much on common sense as on law, but the
bar will admit that this is not a peculiarity confined to legal aid practice.

Proceeding to a more specific examination of just what cases are brought to the
legal aid societies, it is at once apparent that claims for wages and domestic difficul-

'SSN. Y. L. A. R.23.

THEIR WORK 153

ties far outnumber any other classes of cases. Almost universally the collection of
wages comprises the greatest work, then come the husband and wife difficulties with
suits for separation (not divorce) and proceedings to enforce support, and beyond
these two great groups the cases presented range widely over the whole field of civil
law, except that poor corporations have not yet sought legal aid, so that there is little
practice in corporation law.

The societies have kept accurate records of the nature of their cases, and although
the classifications have never been standardized, it is possible to compile an intelli-
gent tabk lowing the kind of work presented by clients to organizations in seven
different typical cities during the year 1914, which was a normal year.1 As the vol-
ume of work varies from city to city, the relative importance of the groups of cases
is best seen from percentages. This table is on the following page.

Legal aid work varies from city to city, but the average percentage figures in this
table give an accurate idea of the general run of the cases and in what sorts of work
the organizations are engaged.

There are five particular classes of cases about which some doubts have been raised
as to whether they could properly be entertained by legal aid organizations. These
are criminal cases (other than family desertion and non-support and bastardy), per-
sonal injury cases, divorce libels, complaints against attorneys, and bankruptcy pro-
ceedings. The last two admit of summary disposition. There are only three societies
which refuse bankruptcy cases as a matter of rule. The organization in Nashville, which
is allied to the Commercial Club, is its chief exponent.2 There is every reason for
discouraging voluntary bankruptcy, but there is no reason for flatly refusing to file
schedules as a matter of rule. Until the small claims courts evolve a successful court
trustee plan,3 bankruptcy is often the only relief allowed by law. In cases where a
vindictive creditor is harassing his debtor, causing him to lose his job as fast as he
finds employment, making it difficult to support his family and impossible to pay
other creditors, neither ethics nor morals enjoin resort to the bankruptcy court.

Only three societies refuse to give any consideration to complaints against attor-
neys. It is a common policy to refer all such matters directly to the proper Bar Associa-
tion. The soundness of such a policv depends entirely upon the condition of the local
Grievance Committee. In New York there is excellent reason for promptly referring
complaints to the Grievance Committees of the City and County Bar Associations,
both of which maintain investigators and attorneys for just such cases and do excel-
lent work. Of few other Grievance Committees can this be said; reference to many
of them results in pigeonholing the complaint. In general, it would be well for legal
aid organizations to accept and prosecute cases against attorneys. The societies deal

1 This is not true of workmen's compensation cases. Many of the compensation acts were not passed until 1914 or
later. The societies are just beginning to find their function in this new field of litigation.

2 Report of Proceedings of the Fourth Conference of Legal Aid Societies, page 111.

3 See ante. Chapter VIII, Small Claims Courts, § 7-3, page 57.

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THEIR WORK 155

with the poor, who are most easily imposed on and taken advantage of; they are more
likely to encounter certain types of abuse than any other agency; and they may work
in excellent cooperation with the local Grievance Committee. When the misconduct is
so gross that disbarment is warranted, the complaint and the evidence should go to the
Bar Association, for it is desirable that any court proceedings should be instituted
in that name, but as to all other matters the legal aid organizations can render in-
valuable service to the community and to the bar itself by investigating complaints
and fearlessly prosecuting the cases where action is warranted.

In divorce matters there is a clear and well-justified rule to refuse to institute di-
vorce proceedings. Of thirty-one organizations doing general legal aid work and hav-
ing existed long enough to have settled rules of policy, twenty-two decline to repre-
sent divorce libellants, and in addition two, though accepting the cases, use every
means to discourage such proceedings. There is a strong public policy against mak-
ing divorces easy and cheap. The argument for costs as a deterrent can be well made
in this field. The issue is not between divorce and no relief; non-support proceed-
ings will secure support and separation proceedings will protect against brutality or
physical abuse. The issue is between legal action which breaks up a home forever and
legal action which preserves the home or leaves the path open for reconciliation. Or-
ganizations, as in Jersey City and Boston,1 have attempted to accept divorce cases
and have found that their assistance was abused, and so have changed their tactics.
While exceptions are sometimes warranted in unusual circumstances, the rule is a wise
one, for its very existence puts the legal aid attorney in a firm position in dealing with
such applicants. The reason which justifies declining the institution of divorce pro-
ceedings requires that such libels, when brought by other attorneys, be defended by
legal aid attorneys in all cases where there is a proper defence. The extension of the
original rule to include refusing to represent libellees in divorce matters is entirely
without justification. The desire to preserve the integrity of the home, which is the
reason for not bringing divorces, requires the representation of the wife, whose hus-
band seeks a divorce, in order that the home may be broken up only for cause shown
and not for lack of representation or for default. Most organizations perceive and
follow this distinction.

In reviewing the history of legal aid organizations we have already seen that in
New York the legal aid society was unable to undertake general criminal work. New
York's leaders saw that the need for legal assistance was as great in criminal as in
civil matters,2 but as the necessary funds for the proposed Criminal Branch were not
forthcoming, and as the District Attorney sent deputies into the magistrates'1 courts
who, it was hoped, would act impartially, the society gave up its venture into the crim-
inal field.3 The Chicago organization in its earlier years did a good deal of work in

1 4 Boston L. A. R. 17.

5 35 N. Y. L. A. R. 11; 36 Ibid. 38.

3 This is further discussed in 7 N. Y. Legal Aid Review, No. 1, p. 2; No. 2, p. 1 ; No. 3, p. 19.

156 LEGAL AID ORGANIZATIONS

the criminal courts, but gradually abandoned it.1 In Boston it was early determined
to refuse criminal cases.2 Buffalo started out to undertake criminal work,3 but has
felt obliged to change its policy. In fact, the situation to-day is that of the thirty-
one organizations having any clear policies or rules, twenty-one refuse criminal cases,
and those which have no rule do very little, if any, such work. Three considerations
have brought about this unfortunate result. First, as has been pointed out, many
societies adopted the rule because in doing so they thought they were following a
precedent based on experience in New York. Second, all societies are overworked and
undermanned, so that they have feared to be swamped if they opened the flood-gates
of criminal applications. Third, as criminal practice has grown into a specialized field,
requiring expert investigators, and specially trained and experienced counsel, the
societies have recognized that they lacked the proper equipment to conduct criminal
cases, especially the more serious matters, properly.

The legal aid organizations have failed to develop in this direction as they should
have developed. The public defender movement is the result of their shortcoming.
Legal aid societies in general should bestir themselves and strain every effort to pro-
vide assistance in this important field. They will do well to take advantage of the
momentum of the public defender idea, and merge it with themselves, by establish-
ing public defender departments. To have two sets of organizations existing side by
side will entail unfortunate results in duplication of work and increased expense
to be borne by the public or the community. As it is always difficult to merge estab-
lished organizations, it is highly desirable that the legal aid societies secure the re-
quisite funds, equip themselves properly, and then let it be known that they are pre-
pared to accept assignments from the court or direct applications from persons charged
with the more serious offences. How far the legal aid societies should attempt to prac-
tise in the lower courts is the same question which has been considered in connec-
tion with the police court public defender.* This is a local question for each society
to answer in accordance with local conditions.

The chief point of contention among the organizations is with regard to accepting
personal injury cases. Of the thirty-one organizations, twenty-four refuse such cases
unless they be claims for trifling amounts. The rule is a result of the contingent fee
system. The majority position is that to do such work is to enter into competition
with the bar. The injured person who is able to retain his own counsel is, of course,
not entitled to free assistance from a legal aid organization. It is argued that by
virtue of the contingent fee any injured person, no matter how poor, can secure the
services of counsel. The minority hold to the proposition that a poor man does not
cease to be entitled to the services of a legal aid organization because he has suffered
a serious injury. They regard the contingent fee, as it is used in practice, as an ex-

I This may be seen by reviewing the attorney's reports in the Chicago Legal Aid Society Reports from 1905 to 1910.

I I Boston L. A. R. 9. ■ 1 Buffalo L. A. R. 5.

1 See ante. Chapter XV, The Defender in Criminal Cases, § 8. page 124.

THEIR WORK 157

ploitation of the unfortunate position of the injured person and not as a method
of giving him proper relief.1 The organizations which decline personal injury cases
are forced into a most uncomfortable position. An injured poor person applies for
assistance, which is refused; he then asks to whom he should go, and this informa-
tion cannot be given him. This second refusal is a necessary result of the first, for the
reference of personal injury cases to selected members of the bar forces the society
into discrimination and gives rise to a practice more objectionable to the bar than
is the practice of accepting the cases. The result of the double refusal either to accept
the case or to recommend an attorney is disastrous. The injured party may not know
anywhere to go and so fail of relief altogether, or, what is more likely, will fall into
the hands of a "runner" or lawyer's agent, and will then pay the larger proportion
of any settlement or recovery in fees. To combat this evil, many of the organiza-
tions have qualified their rule by accepting such cases for arbitration or settlement,
but not for litigation. The New York Legal Aid Society, which first laid down the
rule against personal injury cases, illustrates all these propositions. The Society has
always refused to accept these cases and logically has refused to recommend appli-
cants to any named attorney, but in recent years it has been willing to entertain
the cases for purposes of settlement only.2 This modification of the rule, although a
step forward, is in violation of the principle on which the rule itself is based. Law-
yers charge contingent fees in settled as well as litigated cases, the bar derives more
income from the settlements than from the verdicts in negligence cases. The poor
man can as easily get an attorney to undertake his case for settlement as for litiga-
tion, and the legal aid society in accepting the case for settlement is just as directly
competing with the bar as if it accepted the case with a view to litigation. The situ-
ation brings about a clash between the two principles that legal aid organizations
should assist the poor and that they should not compete with the bar. In any such
conflict the proper interests of the poor should be given priority. It is their need
which is the very reason for the existence of legal aid organizations. If the legal aid
societies had been strong enough at the outset to accept these cases generally, and
thereby to ward off the contingent fee system, they would have rendered an invalu-
able service to American justice and to the bar itself. Having failed of that, they
should not now acquiesce in the situation, but should have the courage to minimize
the bad condition by accepting the personal injury cases of poor persons and by giv-
ing complete legal assistance in this as in any other kind of case. This position finds
support in the remarks of one of the best attorneys of the New York Legal Aid
Society : 3

"However much we may vary in our opinion that attorneys may be unfair or
unjust, we must admit that there is about the negligence case, an atmosphere

1 The arguments are set out in Report of Proceedings of the Second Conference of Legal Aid Societies, pages 43-52.
J Report of Proceedings of the Second Conference of Legal Aid Societies, page 51.
3 See Report of Proceedings of the Second Conference of Legal Aid Societies, page 61.

158 LEGAL AID ORGANIZATIONS

that is totally different from any other kind of case, and as a matter of fact
negligence cases, personal injuries, have taken on an atmosphere of gambling;
and I do think that our Legal Aid Society or any other, might well take up that
class of case, simply for the purpose of getting the profession generally back
to a more wholesome view of that kind of case, and make all attorneys realize
that those are cases which can be treated like other cases."

As most of the personal injury cases offered to legal aid societies are those of
injured workmen, the passage of the workmen's compensation acts, which have so
largely done away with contingent fees, would have rendered this argument aca-
demic were it not for the fact that several societies have carried over their rule and ap-
plied it to cases under the new law. Thus the rule tends to reinforce the too common
opinion that attorneys are unnecessary under the compensation acts, so that the
legal aid societies are keeping out of a field where their services are sorely needed.
Not all, but many of them are making their original mistake over again. An injured
workman, receiving one-half or two-thirds of his former pay, is not in a position to
pay largely for lawyer's services. As his compensation comes in weekly instalments,
instead of in one sum, the contingent fee is less applicable. With the passage of time
there will inevitably be an increasing necessity on the part of injured workmen for
representation at hearings in all contested cases. It will be tragic if the legal aid
organizations, through blind adherence to an originally doubtful and now clearly
outworn rule, persist in refusing their assistance to a large class of poor persons
who stand in dire need of that assistance.

§4

Inasmuch as the legal aid societies do no advertising, feeling themselves bound by
the traditions of the profession in that regard, it is interesting to ascertain how the
_ vast army of clients finds its way to their offices. Nearly all the organ-
izations keep records of the channels through which their cases come,
but the records are in a form which leaves much to be desired. From
the point of view of the individual society, properly classified source records are
indispensable to an intelligent direction of the work. By a classification of source
names which represent the vai'ious elements and groups in the community, — as the
organized charities, the courts, the newspapers, the churches, etc., — it is possible to
determine where the society is known and where it is not, and then take steps cal-
culated to bring its existence to the knowledge of the latter group. Our concern here
is merely to ascertain how clients learn of the legal aid societies and what groups in
the community are using the societies. There is an utter lack of standardization, which
precludes any comparison between cities, or the taking of any general average, as was
possible in considering the nature of the cases in the preceding section. On the basis
of existing information no satisfactory table can be compiled. It is probably better

THEIR WORK

159

than nothing, however, to take the records of four of the older and better established
organizations for the year 1914 which has already been used, and with some slight
rearrangement to submit the figures as they stand. It will readily be seen that such
general headings as "Friends'''' made percentage figures valueless. It should also be
noted that, except in New York, the heading "Former Clients" includes not only
persons themselves former clients, but persons referred by former clients. The num-
ber of clients who themselves return to the legal aid society in the course of a year is
relatively small.

Classification of Sources

Boston

Chicago

Cleveland

New York

Judges, clerk of courts, public officials

423

2,557

494

4,233

Lawyers, including legal

aid societies

177

299

776

Organized charities

343

1,093

128

449

Newspapers

925

518

882

(By) Former clients

560

2,088

552

2,019

Doctors and hospitals

—

Ministers and churches

—

Direct applications

—

2,555

608

5,470

By friends

551

5,824.

—

17,754

Consuls for other nations

—

401

From foreign sources

—

1,646

Miscellaneous

750

178

6,800

Total cases

analyzed

2,229

16,121

2,540

40,430

The most interesting figures are those relating to the courts. Although generali-
zations based on this table alone must be made with caution, there is extrinsic evi-
dence which corroborates the above figures showing that from judges, clerks, and other
officials the Boston Legal Aid Society receives 19 per cent of its clients, Chicago 16
per cent, Cleveland 19 per cent, and New York 10 per cent. It is a fact that the legal
aid organizations have everywhere earned good reputations before the courts, and
that the judges and clerks are glad to refer needy persons to them. It is not unusual
for a judge to stop a case in which it becomes apparent that an unrepresented party
needs counsel and instruct the clerk to give him a card to the legal aid society. Up
to the present time, a splendid foundation has been laid for a cooperation between
the judiciary and legal aid organizations which ought to grow steadily closer as time
goes on.

§5

If complete figures were available, the most valuable would be those telling what

results the organizations have obtained in the matters entrusted to them. Such figures

. . do not exist. A few organizations, mostly smaller societies, compile and

^ ' publish their dispositions of cases. A number of organizations state the

of Cases

results in litigated cases, but as these are only a fraction of the total

intake, the facts have only a limited application. Too many societies present as their

160 LEGAL AID ORGANIZATIONS

annual balance sheet a statement of cases received and money expended. Proper ac-
counting should show to the community the funds received (by subscriptions or pub-
lic grant) for carrying on the work and what has been done with that money in terms
of results accomplished in their cases. From such a comparison the societies have
nothing to fear. Their work can stand the test. The omission to make proper records
of results is due to a failure to think the situation through and to appreciate the
necessity for such a tabulation, but it is none the less a bad failure.

No clearer proof of the extremely local nature of the development of legal aid work
could be desired than the chaotic condition of the most basic records. As to the na-
ture of the cases, the classifications are not standardized ; as to their sources, there
is not even proper classification; and as to their disposition, in the great number of
instances there is no classification whatever. So far as concerns the records on which
reports to the public are based, all cases except those taken to court might have been
thrown in the waste basket. There never having been any central organization which
had power to unify, relate, and standardize the work of the various local societies, each
has built up its own system or lack of system with the inevitably resulting confusion.
This deplorable condition will probably continue until the National Alliance of Legal
Aid Societies is made over into a living instrument with some power to influence and
mould the general course of legal aid work.

The disposition figures of the few societies which keep such records admit of simple
classification and, in percentage form, give a very fair picture of what becomes of the
cases. In the following table the results of the work done by six organizations during
1916 is analyzed.

Table showing Disposition of Legal Aid Cases

Cases analyzed

Classification of disposition

1. Advice given or papers drawn

2. Prohibited by rule1

3. Client not entitled to aid

4. Referred to appropriate agency

5. No legal relief possible2

6. Investigated, no merit in case3

7. Lapsed by client

8. Relief by settlement or adjustment

9. Relief by court proceedings

10. Defeat in court proceedings

1 "Prohibited by rule" refers to such matters as criminal, personal injury, and divorce cases, and to persons able
to retain their own counsel.

2 "No legal relief possible" means either that the facts disclosed no cause of action or that relief wa,s impossible
as where a defendant had left the jurisdiction or was without assets.

3 "Investigated, no merit" means that the organization investigated the claim and found it to be without merit
This is primarily used where the evidence is conflicting and the investigation leads the attorney to believe that his
client is in the wrong or cannot prove his case.

Boston
2602

Detroit
452

Milwaukee
847

Minneapolis
2633

Newark
1673

San Francisco
229

per cent
25.4

per cent
27.8

per cent
9.3

percent
28.6

per cent
12.2

per cent
37.5

3.1
4.3

6.5

4.6

10.5
2.6

2.7
6.6

5.1
5.5

7.8
15.2

16.6

2.0

15.3

5.7
4.6

19.8
15.0
18.5

3.4
10.4
18.1

3.5

10.7

6.4

11.3
10.0

17.4

6.4

47.5
9.5

24.2

22.1

52.9
3.4

10.0
7.0

THEIR WORK 161

The percentages in the foregoing table give a wholly accurate idea of what hap-
pens when the cases are passed through the legal aid office. If statistics from the
larger organizations could be presented, they would show very much the same results.
Out of one hundred cases brought to a legal aid organization, one-quarter are requests
for advice or for the drawing of instruments, as wills, notes, or mortgages, and these
are quickly disposed of. Five applicants cannot be accepted because their cases relate
to criminal, divorce, or personal injury matters, or because they are able to engage
their own attorneys. Three persons the society declines to represent because they do
not deserve assistance, regardless of the strict merits of the case, as where they desire
to institute litigation and garnishee a debtor's wages for reasons of spite or vindic-
tiveness. Six persons, either at the outset or later as the case develops, prove to need
medical or charitable more than legal assistance, and so are put in touch with the
appropriate agency. In ten of the complaints it quickly becomes apparent that legal
action will afford no relief, as where the facts fail to constitute a cause of action, or
the defendant is beyond the jurisdiction, or the defendant is judgment-proof, or the
plaintiff lacks the necessary money to pay the court costs and other expenses called
for by the necessary litigation.

This leaves fifty-one cases requiring further investigation or action of one sort or
another. Such investigation discovers that in eight cases the additional facts brought
to light fail to confirm the client's story or so weaken it as to give rise to a reason-
able inference that he himself is in the wrong. In ten cases the society's efforts go for
nothing, because the client fails to return when he is later needed to take further
steps in the prosecution of the case. Sometimes this is because the society's work has
brought the defendant to terms and he makes his settlement directly with the client,
often it is because the clients move, or lose interest, or find the law too slow, or for
any one of a thousand reasons. These are the most discouraging cases in legal aid
work, but because of the class of people among whom the society's work lies, it is
inevitable that a certain number of clients will allow their cases to lapse. There re-
main thirty-three cases requiring action and in which the society is satisfied on inves-
tigation that the claims are well founded. Of these it is possible to settle or adjust
twenty-five. Eight opposing parties are obstinate or refuse to attempt to reach a fair
compromise so that suits are brought against them. Of these eight litigated cases,
one is lost and seven are won. Multiplied out to the proper proportions, these figures
show the grist of the legal aid mill.

§6
The office of a legal aid organization is like any ordinary private law office. The only
objective signs of difference that impress the observer are the modesty of the appoint-
ments and the steady procession of persons coming and going. In general the or-
ganizations, through their attorneys, conduct their cases just as anv attorney con-

162 LEGAL AID ORGANIZATIONS

ducts his practice. In a few offices the work, up to the point of litigation, is taken

_ . . , . charge of bv persons who are not lawyers, but these instances are ex-
Pnnciples in ,r ,z .,. ,

n , ceptions to the prevailing rule.

As the legal aid organizations stand in a quasi-public position, as
** ' they are charged with the responsibility of expending the sums en-

trusted to them only for proper purposes, they are confronted with certain peculiar
problems which have led to the adoption of several interesting principles concerning
the conduct of the work. Realizing that their work was in the field of the law and
that they were taking a part in the administration of justice, the organizations have
wisely refrained from erecting any moral standard which applicants must satisfy
before being entitled to assistance. The only test is the intrinsic merit of the claim
plus a due regard for those restrictions which good ethics impose on all members
of the bar. Suits for reasons of spite, vexatious proceedings taken for delay, tech-
nical defences to just claims, will not be undertaken. The main principle may be illus-
trated in an extreme way by stating that if the worst man in the world was actually
owed ten dollars by the best man, the society would undertake the collection for the
former, provided he was too poor to engage his own attorney. It is a tribute to the
clear-sightedness of the leaders in the movement that the societies early took this
stand. Had they undertaken to lay down rules concerning the morality of applicants,
they would have arrogated to themselves the right to define justice differently than
the law defines it, and they would have lost sight of their main objective of securing
the legal rights of persons unable to obtain assistance elsewhere.

There are very few exceptions to this rule. New York refuses to accept claims from
domestic servants who have left without reasonable notice. This is only a half excep-
tion, for the custom of notice is now so clearly established in that occupation that
it would surprise no one to have the law hold that the week's notice is an implied con-
dition of the contract. Servants who are discharged without a week's notice constantly
seek recovery of pay for that week, so that the New York rule is simply making the
principle work both ways. In domestic tangles, particularly where children are in-
volved, the organizations make careful investigation of the client's life and history,
and decline to act if he or she proves unworthy. In these cases the moral test is itself
the legal test. In a proceeding for guardianship or custody of children the fitness of
the petitioner is put in issue by the law. Morality as a test of exclusion is sometimes
applied in illegitimacy cases. The society will assist a woman in such a case, no matter
how much she herself may have been to blame, in the first such instance, and prob-
ably in the second, but after that the society will decline to act.

In all their work the organizations earnestly endeavor to refrain from competition
with the bar. They have been so anxious on this score that at times they have gone too
far, they have refrained from what seemed competition even at the expense of their
clients, as in personal injury cases. In this relationship to the bar the societies have
kept their record remarkably clean. The number of clients who are able to impose on

THEIR WORK 163

them is so trivial as to be negligible. No serious charge has been made by responsible
members of the bar that the societies were representing persons able to pay for their
legal services. When it is considered that the societies do the work more economically
than a private office could and yet lose from five to thirty-five thousand dollars a year,
it is self-evident that they are engaged in a class of work which would represent a dead
loss to the profession if its members were called upon to perform the necessary services.

The only criticism which requires consideration is that the societies " feed " cases
to certain attorneys. By this it is meant that the society refers such cases as it de-
clines— criminal, divorce, personal injury, and paying cases — to a limited number
of attorneys. It is because of this criticism that many of the societies which decline
negligence cases also decline to refer the applicants to any attorney. What to do
with cases which are rejected has always been a difficult question. If a society is to
refer cases at all, it must refer them to attorneys whom it knows and trusts, for it
unavoidably pledges its reputation that the case will be rightly conducted and that
no excessive fee will be charged. This results in discrimination. Here again there is
a conflict between two principles, and in such a conflict the interests of the clients
should be held superior, they should not be sent empty away; if the society can-
not itself act for them, it ought at least to see that they come into proper hands. It
therefore becomes largely a question of how the reference system can be made least
objectionable.

There are three plans in existence. In Los Angeles, the bar association certifies a
list of attornevs who are willing to take cases, and civil matters are referred to them
in rotation, following the alphabetical order, by the public defenders office. The list
is extensive, so that the element of discrimination is reduced to a low point, but cor-
respondingly there is a real danger that some attorney will prove incompetent, or
neglect his case, or charge an improper fee. Whenever this happens it injures the
society's reputation, deters persons from seeking its assistance, and lessens its power
in the community. In Philadelphia, cases are referred to a limited list consisting of
eleven attorneys. Their work is reviewed by the legal aid attorney, he meets with
this informal staff regularly and checks up the progress made in their cases, and all
fees charged are communicated to him and recorded. This method is highly efficient,
it protects the society entirely, but the element of discrimination becomes large. The
plan has been so well conducted in Philadelphia that criticism has not been heard,
but if attempted elsewhere, it might easily meet with disfavor and arouse hostility.
In Chicago, Boston, and several other cities, the cases are referred to attorneys
formerly on the legal aid staff. This is perhaps the least objectionable method, for
it very completely guards the society's position and good name, and, on the other
hand, as the group of ex-attorneys in those cities is constantly enlarging and chang-
ing each year, the discrimination does not appear great. There is no complete solution
of this difficulty, which is precisely like that confronting judges in their selection
of masters, auditors, receivers, and referees.

164 LEGAL AID ORGANIZATIONS

Litigation is always the last resort in a legal aid society. Conciliation and arbitra-
tion are the favorite means employed, as has earlier been pointed out.1 Many of the
cases of the poor are against other poor persons who are equally unable to pay attor-
ney's fees. The societies have, in their respective communities, earned such reputa-
tions for fair dealing that the opposing party is very often willing to come to the
office and fully relate his side of the story. The legal aid attorney changes his atti-
tude from that of advocate to that of arbitrator. Force of circumstances gives his
decision the validity of a legal judgment because neither party can afford to pay
counsel to fight his decree. The attorney in this function closely resembles the judge
of a small claims court, and the results obtained have been as gratifying. It is the
rare case where the parties are not willing voluntarily to abide by the decision.
Although the societies bring justice to thousands of persons whose claims otherwise
could never be heard, there is much warrant for the statement that the net result
of the work, because of the manner in which it is conducted, is to decrease rather
than increase litigation.

Figures based on records for 1915 show that in Boston out of the total number
of cases received only 9 per cent were taken to the courts, in Cleveland 8 per cent,
in Kansas City and New York 6 per cent, and in Chicago 4 per cent. Examining
further into the New York work, which is the lai'gest and of longest duration, it
appears that year after year the proportion of cases in which proper relief could
not be obtained without resort to litigation has been less than one- tenth of the total
number.2 These figures are not accidental ; they are the result of a policy consciously
adopted and followed. The attorney for the society in his report for 1907 gives it
clear expression:3

" Since the first day of January, 1907, there has hung in each of the six offices
of The Legal Aid Society a neatly framed placard containing an extract from
the writings of Abraham Lincoln — who was not only a great lawyer, but a great
friend of the poor — words which seem particularly appropriate to guide and
inspire the work of the attorneys of the Society.4 . . .

" The poor applicant who makes his plea for legal aid, and the person against
whom he lodges his complaint, each knows that behind the advice and counsel
which is given by the Society's attorneys lies the sanction of the law and the
resort to the tribunals established by the law. Nevertheless, these tribunals are
sought only as a last resort. The truth so forcibly expressed by Lincoln has more
and more come to be recognized as a principle which should be followed in busi-
ness relations, and it is the working rule of The Legal Aid Society."

The societies institute or defend cases in court only when they are reasonably
convinced that the truth is on their side. Their appearance in court depends on the

1 See ante, pages 63 and 70.

2 History of the New York Legal Aid Society, page 29. For detailed figures and statements see'32 N. Y. L. A. R. 30 ;
34 Ibid. 7 ; 36 Ibid. 10; 37 Ibid. 24 ; 38 Ibid. 24 ; 41 Ibid. 8.

8 32 N. Y. L. A. R. 29.

4 Here follows the quotation of the famous saying as to the discouragement of litigation which has earlier been
quoted on page 60.

THEIR WORK 165

merits of the case as they understand it and not on the payment of fees. They have
established a standard of conduct which is likely to exert a powerful influence in
the future. The standard accords with the best ethics, but it unquestionably is far
in advance of the average attitude of the bar. They deal with the old and vexing
question of duty by frankly placing their duty to the court before their duty to the
client. There is to-day a steady trend of thought which is shifting the emphasis of
the lawyer's duty from one owed primarily to his client to one owed to the court
whose minister in the search for truth and the administration of justice he is.1 The
legal aid societies are putting this hopeful theory into practice, and if they should
become the training schools in practice for law students, their influence on the next
generation of lawyers would play an important part in bringing about a more gen-
eral realization and acceptance of this higher definition of professional obligation.

§7

Whether or not legal aid organizations are justified in charging fees has been a fruit-
ful topic of discussion at all their conferences.2 The fees called into question are of two
. sorts. First, there is a fee which is charged when clients apply for
. s & assistance, commonly called a retainer fee, and ranging in its amount

as used by different organizations from ten to fifty cents. Second,
there is a charge by way of commission on sums collected for clients, which also
varies, but never exceeds ten per cent. New York adopted the policy of charging
small fees early in its history. In 1879 it put into effect the commission charge, and
in 1896 it instituted the retainer fee. Nearly all of the older organizations followed
the plan. The newer organizations, particularly the public bureaus, have adopted a
contrary policy. At the present time the societies stand very nearly evenly divided
in opinion and practice. A careful investigation made in 1916 by the Chicago Legal
Aid Society ascertained that of thirty-nine organizations, eighteen charged fees and
twenty-one did not. Analyzing the figures more closely, it appears that of fifteen
organizations of the private corporation type (representing in the main the older
and larger organizations), nine made charges and six did not; of fifteen organiza-
tions existing as departments of charities, five did and ten did not; and of five public
bureaus, one did and four did not.

If the charging of fees prohibited deserving clients from securing the assistance
of legal aid societies, or if it worked serious hardship on them, or if it was contrary
to any fundamental principle of legal aid work, then fees ought to be wholly abol-
ished. The evidence indicates that none of these three bad results follows from a proper
system of charges. If the retainer fee were an absolute condition precedent, it would

1 Cf. Public Service by the Bar, an address delivered by Elihu Root as President of the American Bar Association
at its meeting on August 30, 1916.

2 Report of Proceedings of the First Conference of Legal Aid Societies, page 67; Pjid., Third Conference, page 39-
Ibid., Fourth Conference, page 89.

166 LEGAL AID ORGANIZATIONS

work great hardship. The universal rule is that it may be abated or entirely waived
in the discretion of counsel. No charge is made in cases of deserted wives. In fact,
the charge is only collected from about one out of every three clients. The figures
of cases received give no indication that the fees make any difference. When the
New York Society rearranged its fees in 1902, it had this possibility in mind and ap-
pointed a special committee of the Board of Directors to make an investigation. They
reported that the fees as charged did not keep clients away.1

It does not seem that the fees charged work any hardship on the clients. Chicago
found cases where, after it had charged fees, the client was obliged to seek charitable
assistance.2 If that were generally the case elsewhere, it would be a final argument,
but there is rather interesting evidence in existence which points in a contrary di-
rection. In Detroit the policy has been followed of making no charges, but of per-
mitting clients to give as a donation any sum they desire. This affords a test of
what clients feel willing and able to give in payment for services rendered. It may
be contrasted with Boston, which has always charged fees by way of commissions
on amounts collected. The criterion is the percentage relationship which the fees or
donations from clients bear to the amounts collected for them. The following table
shows for a period of six years the percentage of sums recovered which clients donated
in Detroit and the percentage which was charged in Boston :

Tear Percentage of Collections

Donated in Detroit Charged in Boston

1910 14.7 7.6

1911 12.5 6.0

1912 12.0 10.0

1913 4.5 7.5

1914 18.3 6.3

1915 18.3 5.3

1916 6.6 5.9

It is a fair inference that if clients in Detroit felt able to give $1.24 out of each $10
collected for them, no hardship was done in Boston in charging its clients .69 on
each $10 collected. Where discretion is vested in counsel to make the charge accord-
ing to the nature of the case and the needs of the client, it is unlikely that injustice
will be done. The fee is fixed at the end of the case, by which time the attorney knows
the client and his situation well. As attorneys are paid fixed salaries and receive no
part of any fees collected, no personal interest is involved. The fact that two-thirds
of the organizations operating as departments of charities do not charge fees might
give rise to an inference that the charities regarded any fee as working a hardship.
In the absence of more direct evidence no such general inference is warranted, for
it appears that in 1916 the Cleveland Federation for Charity and Philanthropy in-
structed the Legal Aid Society that it would do well to give more attention to requir-
ing the payment of fees in pi'oper cases.

1 27 N. Y. L. A. R. 6. 2 Report of Proceedings of the Fourth Conference of Legal Aid Societies, page 90.

THEIR WORK 167

The charging of fees is not contrary to any fundamental principle. The proposi-
tion for which legal aid organizations stand is equality before the law. The world
of clients is not to be divided between persons able to employ their own counsel and
persons able to pay nothing. The larger number of legal aid clients are not applicants
for charity — man}7 of them would refuse to apply for assistance if they considered
that they were being given charity;1 they are mainly self-supporting, self-respecting
persons, whose income does not give them a sufficient margin to pay the fee which a
private attorney must charge. The ideal of the legal aid organization is to give to the
poor man at a price he can afford to pay, whether it be two dollars or fifty cents or
nothing, as competent legal services as the rich can buy.2 If it were able to do that,
it would secure complete equality. Its aim would be fully realized.

The dispute is not one of principle, but resolves itself into practical considerations.
It was on practical grounds and not on any matter of principle that the Women's
Committee of the Chicago Legal Aid Society advocated the abolition of fees.3 It was
felt that it was impossible to devise a system which worked with justice and uni-
formity. It is possible that clients may deliberately impose on an attorney and thus
avoid the small fee, and so a discrepancy or lack of uniformity may result. Such in-
stances ought to be very rare because most clients have no desire to reward good deeds
with bad, or honest dealing with trickery, and also because the attorney, by virtue
of his position, knows so much about the client that he cannot readily be imposed
upon.

Most practical considerations weigh in the balance in behalf of charging fees. The
request to a client that he pay a retainer fee often, twenty-five, or fifty cents is only
asking him to defray the incidental cash expenses to which the society is at once put.
To conduct the case, the society incurs expense for postage, telephone, and carfares,
and there is no reason why a client, when able, should not defray such items. This is
directly in accord with the universal rule of all organizations to require clients, when
able, to pay court costs and witness fees. This type of fee is negligible as a source of
income, but many of the older organizations, as those in New York, Philadelphia,
Boston, and Cleveland,4 believe that a small initial charge is worth while because it
puts the relationship between client and society on a more businesslike basis, it tends
to maintain self-respect, it prevents a tendency to pauperization, and it gives the client
a greater sense of responsibility toward the society. Cases which the society is forced
to close as "lapsed" are generally those where it alone has expended money, time, and
effort; rarely does the client who has invested his cash, however little, fail to see the
case through.

The income from the second kind of fees, commissions on collections, though not

1 See post. Chapter XIX, Typesof Legal Aid Organizations, § 5, page 178.

2Cf. Report of Proceedings of the First Conference of Legal Aid Societies, page 7; Ibid., Fourth Conference, page 100.
3 " The committee makes this recommendation on practical grounds." The report is quoted in Report of Proceed-
ings of the Fourth Conference of Legal Aid Societies, page 90.
* 12 Cleveland L. A. R. 9.

168 LEGAL AID ORGANIZATIONS

large of itself,1 is sufficient, because of the low cost per case, to enable an organiza-
tion to undertake many more cases than it otherwise could afford to accept. It has
been pointed out that New York is thus enabled each year to undertake seven or eight
thousand more cases.2 As every organization works up to its financial limit, this is a
practical consideration of importance. In actual result it means that clients, who are
able to do so, return to the society a small portion of the benefits which the society
has secured for them, not in order that the society may prosper or its attorneys be
enriched, but so that the society may be able to do more work for less fortunate cli-
ents who are unable to pay anything whatsoever for the services that they receive.

1 The fees charged by legal aid organizations by way of commissions on collections are set out in their annual
reports. The following table gives an idea of their amount The figures are for 1916 except as to Chicago, whose
figure is that for 1915.

Amount Collected
for Clients

$22,808.31

2,881.67

18,528.99

2,271.38

unknown

323.70

7,401.54

6,704.10

128,005.10

16.537.62

11,286.34

689.38

5,109.00

As the organizations conduct their work at a cost of from $1.50 down to .50 per case, it is apparent that these com-
missions enable them to do a substantially larger work than their income otherwise would permit.

2 Report of Proceedings of the Third Conference of Legal Aid Societies, page 43.

Organization

Commissions

Charged

Boston

$1,354.73

Buffalo

275.30

Chicago

716.25

Cincinnati

49.45

Cleveland

145.85

Hartford

12.35

Minneapolis

467.05

Newark

612.25

New York :

Legal Aid Society

7,631.89

Educational Alliance

844.14

Philadelphia

383.93

Rochester

3.40

St. Louis

591.94

Chapter XIX
TYPES OF LEGAL AID ORGANIZATIONS

Private agencies lack the essential quality of this new (public) office: the
recognition of the whole community's obligation to the man in court and to
its own self-respect as a democracy. The Independent for October 18, 1915. 1

§ 1

IN the development of the work thus far there have emerged five distinct types of
legal aid organizations. They are:

TJ e Fi <p *' I*"vate corporation societies.

2. Public bureaus.
1 ypes q Departments of organized charities.

4. Bar association societies.

5. Law school societies.

There are one or two organizations which do not fit into these classes, and within
the groupings there are many varieties, but these clearly are the types of organization
now in existence. Before taking up and weighing the respective merits of these vari-
ous types, it is worth while to mention briefly the few special organizations that are
engaged in legal aid work.

§2

The standard legal aid organization would be one which rendered to all persons who
were unable to procure assistance elsewhere that legal advice and assistance which
. .. they needed in any case in any branch of the law, excepting only the

J^ . . instituting of divorce proceedings. The test should be the inability

of the client to employ counsel, and only very rarely the nature of
the case.2 We have seen that the large majority of organizations give general civil
relief except in personal injury and divorce cases, but that they give no criminal
relief.

There are a few organizations which specialize in limited kinds of work and accept
nothing else. Most of the public defender organizations confine themselves to criminal
matters. This is not true in Los Angeles or Portland, but it applies to the defenders
in Omaha and Columbus and to the Voluntary Defenders Committee in New York.
There is no reason for this divided jurisdiction. Ultimately this specialized work
ought to be merged with the general legal aid work so far as organization is con-
cerned. That we have this specialized form of legal aid service is due to the historical
fact that the legal aid organizations themselves never met the demand in the crimi-

1 From an article by Geddes Smith entitled "Making the Law Work Both Ways," 84 The Independent. 94, 95.

2 There might occasionally have to be some qualification. If such cases were presented, the societies might well be
justified in refusing breach of promise and alienation of affection cases, which too often are only cloaks for black-
mail.

170 LEGAL AID ORGANIZATIONS

nal field. Hence arose the necessity for some one to do that particular work to com-
plement and carry to completion the legal aid idea. To fill that particular need came
the public defender rendering that particular service. The same thing would happen
if all legal aid societies were to-morrow to refuse all domestic relations cases. The
need for legal assistance in that field would soon manifest itself, and we would see
either the domestic relations courts extending their functions by adding attorneys
to their probation staffs, or the erection of organizations providing legal assistance
in that special field.

An illustration of this same process is afforded by the National Desertion Bureau.
The legal aid societies have done reasonably well in meeting the problem of non-
support, but, with the exception of Kansas City, they have failed to cope with deser-
tion. When a husband deserts or abandons his family he very often goes into another
state, so that the case against him presents the practical difficulty of ascertaining
his whereabouts and the legal difficulty of extradition. The National Desertion
Bureau was established in New York in 1912 by the National Conference of Jew-
ish Charities. It is a legal aid organization confining its work entirely to desertion
and abandonment cases. This specialization has resulted in maximum efficiency. The
Bureau has been amazingly successful in locating deserters, it has cooperated with
the prosecuting attorneys in securing their return to the jurisdiction, and by thus
compelling husbands to perform their obligations of support it has saved to the
United Hebrew Charities thousands of dollars which formerly it had to pay out for
the support of abandoned families.1

This Bureau, with the admirable technique of work which it has devised, stands
as an example to all legal aid organizations. Desertion and abandonment ought to
be sternly combated in evei*y community, and it can best be done through efficient
legal aid work. It would, however, be a mistake for every city to have its own special
bureau for this special work. It can far better be done as a part of the work of the
existing legal aid organizations. Much of the success in desertion work depends upon
having reliable, efficient, cooperating agencies throughout the country. This is ready
at hand if a strong enough central body is created to bring the local organizations
into closer alliance and to provide the necessary clearing house for the transmission
of cases and information.

The few greatest cities may need special organizations for special purposes, but
the general development should be in the direction of merging all branches of legal

1 The records show quite clearly, particularly when the growth of population is remembered, the effect produced
by the National Desertion Bureau since its creation in 1912.

Year

1910
1911
1912
1913
1914
1915
1916

Num ber of Persons

Amount granted

given Charity Relief

by United Hebrew Charities

521

$81,261.00

431

24,950.00

313

18.319.00

298

18,lfi0.27

234

17,384.49

267

17,094.87

195

14,803.77

THE FIV'E DIFFERENT TYPES 171

aid service in any community into one definite society or bureau. This involves no
loss of efficiency. Specialization should continue, but it should not be specialization
of organization, but specialization of work within the one organization. Specializa-
tion is imperatively needed for desertion cases and criminal cases. It is just as much
needed for seamen's cases, workmen's compensation cases, loan shark cases, in fact,
for any extensive branch of the law giving rise to many cases among the poor. The
one organization, if properly equipped, can secure the same efficiency through de-
partmental specialization, and in addition it secures unity of purpose, control, and
policy, better cooperation, less duplication, and it effects many economies in the
overhead and administrative expenses.

§3
The legal aid system of Germany is very largely built on group lines. There are po-
litical, religious, and class bodies or associations which provide legal assistance for
; . their members. Fortunately, the development in the United States,

° J due chiefly to the influence of Mr. Briesen, which has already been

„ , noted, has been in an entirely different direction. The type of or-

JLrnployers . .. .. . , ., . , „ .

ganization that extends its assistance to all poor persons in a city,

regardless of politics, religion, or class is more democratic and it is sounder. As its

function is to play a direct part in the administration of justice, it should no more

be founded or carried out on partisan, or sectarian, or any other lines of cleavage

than should the administration of justice itself.

There are two organizations in America which act for definitely limited groups
rather than for the community in general.1 The Labor Secretariat in New York is a
cooperative legal aid society giving its assistance to the members of its constituent
labor unions. The plan of itself is an entirely worthy one. It has never grown to any
size nor has it extended itself into other cities. Though it has existed since 1902, it
has been so far outstripped by other types of organizations that it has been lost sight
of. In such an organization inevitably the fundamental conception of legal aid work
is lost. It does not represent an extension of the administration of justice. It repre-
sents only a plan for securing, through combined purchasing power, the services of
a private attorney. Had most of the organizations been of this type, the true posi-
tion of the legal aid society in the administration of justice would have been clouded,
and its influence in bettering and equalizing that administration, which has clearly
been at work since the establishment of public legal aid in 1910, would not have
been strong if it had been felt at all.

As a sort of complement to the Labor Secretariat, which typifies legal aid bv
employees, there is in Detroit the Ford Legal Aid Bureau, which represents legal aid

1 It is interesting to note that in Havana, Cuba, legal aid is furnished by Wage Earners' Clubs. See 9 N. Y. Legal
Aid Review, No. 3, p. 2.

172 LEGAL AID ORGANIZATIONS

by employers. This Bureau was started in March, 1914, as a part of the general wel-
fare work which is carried on in the Ford factories. The Bureau is a division of the
company's legal department. It has its office in the main factory building, and has
a staff of four attorneys. The Bureau is chiefly interested in searching titles for men
buying their homes under the profit-sharing plan, in protecting them from fraudu-
lent insurance agents and others, in taking care of garnishment suits, and in facil-
itating naturalization proceedings.1 The Bureau gives general advice, but does not
usually undertake litigation.2 It is a fair criticism that the Bureau is more inter-
ested in matters which affect or concern the company than in matters which affect
the employee alone. Thus, if a man is sued and his wages are garnisheed for a debt of
ten dollars, he will be given representation, but if he is owed ten dollars, he will not
be given an attorney to bring suit in his behalf. The following table, covering an
eight months' period from June, 1916, through January, 1917, shows the nature of
the work done:3

Nature of Cases

Number of Cases

Titles examined

723

Appraisals of real estate

568

Advice on real estate matters

7,917

General legal advice

8,109

Citizenship cases

403

Protection in fraudulent transactions

316

Garnishments

1,982

Orders to show cause

223

Representations in court

528

Summons served

376

Total

21,145

In general the idea deserves the highest commendation. If it is developed along
the lines of other legal aid organizations, it is capable of doing great good with its
vast clientele of nearly one hundred thousand workmen. If it develops as a proprie-
tary organization, its efficacy will be seriously impaired. It is a striking illustration
of a principle that is steadily gaining better recognition in the business world.4
It is known that a sick employee is an inefficient employee. Methods for safeguard-
ing health and providing medical assistance are common. It is equally true that the
mentally worried or harassed employee cannot do his best work. Worry impairs effi-
ciency, but it is not realized how many men and women are troubled by domestic
difficulties, by fear of the loan shark, or by other problems which, because they involve
the law, terrify persons who do not know where to turn for advice and counsel. It is
both humanitarian and good business for employers to afford legal as well as medical
assistance. It is almost certain, however, that this can best be arranged not through

1 This is set out in Helpful Hints to Ford Employees (1916), pages 32-34.

2 This statement is made in a prospectus of the work prepared by the legal department for publication.

3 Compiled from the daily reports of the Factory Legal Department to the Department of Education.

1 The Manufacturers' Association of the City of Bridgeport: Report on Welfare Work in Bridgeport (1P18), pages
70, 124.

THE FIVE DIFFERENT TYPES 173

a bureau controlled by the company but through the independent legal aid organi-
zation existing in the city. Because of a reticence which can easily be understood,
men are slow to reveal their troubles to their "boss" or to attorneys responsible to
him. Thev would be unlikely to admit having troubles at home, or having borrowed
money, or being in debt. In dealing with an independent legal aid attorney there is
no such reluctance, at least no more than there is with any attorney. The legal aid
organizations are not now in a financial position to add largely to their work,
but the company could properly pay the increased cost of its increased work by a
subscription, which would be less than it would cost to run its own legal aid de-
partment.

It is not unlikely that in the future the large employers of labor will enter into
some relationship with legal aid organizations. The Legal Aid Bureau of Nashville
is a department of the Commercial Club, and its existence is due in large measure
to the interest and activity of business men. Its secretary has emphasized the services
that legal aid organizations may render to business organizations.1 A step in this
direction has been taken in Boston. The Edison Electric Illuminating Company has
always permitted its employees to consult its own counsel, but recognizing that "it
is a question whether all of our employees who might take advantage of this do so,"
it has made an extended statement concerning the Boston Legal Aid Society, and
offers to give any employee a letter of recommendation from its Welfare Bureau to
the society.2

Returning to a consideration of the five types of legal aid organizations proper, it

is desirable first to fix the extent to which each type has been used. We have earlier

seen in studying the history of legal aid work that during the first two

periods of its development the private corporation society was the favor-

J ' ite type, that during the third period the departmental type prevailed,

'™ and that during the last period the public bureau predominated. There

have been fifty-eight distinct times when the question of organization has presented

itself. This includes organizations which have been founded and then lapsed, mergers,

and reorganizations. The various types have been employed to the following extent:

Type Number

1. Private corporation societies 15

2. Public bureaus 9

3. Departments of organized charities 17

4. Bar association societies 5

5. Law school societies 5

6. Miscellaneous 7

1 M. G. Denton: The Services of Legal Aid Societies to Business, Particularly to Employers of Labor, Report of
Proceedings of the Fourth Conference of Legal Aid Societies, page 108.

2 8 Edison Life, No. 8 (August, 1917), pp. 257-259.

174 LEGAL AID ORGANIZATIONS

With the miscellaneous group we are not concerned. They are in the main organ-
izations whose work has never become extensive or which have not yet had time to
decide on their final form of organization. Of the fourth and fifth types — the bar
association and law school societies — there are fewer organizations, and as they raise
no difficult questions and may be easily described, it is advisable to deal with them
first.

The law school type, though of great interest in connection with legal education,
is not of importance in the general field of legal aid work. With the exception of the
Harvard Legal Aid Bureau, they have proved weak and have done onlya small amount
of work.1 The limitations of this type are inherent and obvious.2 A staff of untrained
men, not members of the bar, limited as to the time at their disposal, and all dis-
persed during the summer vacation, is not a model to be followed. These organiza-
tions have done no harm, much good to the comparatively few cases which have come
to them, and a great deal of good to the men who have done the work. This last is
the great asset of this type. It will leave its mark on the rising generation of lawyers.
In discovering and developing this asset — an asset both to legal aid and legal edu-
cation— the law school society has made an important contribution. The idea is one
to be treasured and not lost. Fortunately it can be preserved and carried out more
effectively in connection with other types of legal aid organizations which have per-
manence, trained supervision, and better equipment.

The bar association type has been employed only to a limited extent. In St. Louis the
Bar Association established an excellent society. As it was soon afterward taken over
by the city and operated as a department of government, it does not offer any final test
for this type. The Birmingham attempt failed, so that New Orleans, Columbus, and
Detroit are the only remaining societies of this sort. From the experience afforded in
these three fields the bar association type is found wanting. Apparently the bar associ-
ations thus far have not had a proper vision of the opportunity and they have proved
a weak instrument to which to entrust this important service. In New Orleans and
Columbus the work has gone forward but slowly and the organization has hardly
crystallized at all. In Detroit, where the society was started in 1909, despite an enor-
mous growth of the city, the Bar Association has methodically gone on year after
year appropriating five hundred dollars for the legal aid work, never grasping the
opportunity or perceiving the need growing around it, and never giving more than
perfunctory attention to the work. The result has been that despite the efforts of an
able attorney in charge, the work has sunk to a low level. Detroit, conceded in 1917 to
be the fifth city in the country, in legal aid work ranked twenty-fourth. There are
several reasons for the failure of this type. The greatest is undoubtedly the general

1 The Legal Aid Society of the George Washington University Law School ranks second and has done reasonably
well under adverse conditions; the Yale Legal Aid Bureau has never attained strength; and no information is avail-
able as to the Legal Aid Bureau of the University of Tennessee. The Denver society is no longer in existence.

2 For an extended presentation and discussion of this subject see Report of Proceedings of the Fourth Conference
of Legal Aid Societies, pages 11-20; and Third Annual Report of the Harvard Legal Aid Bureau.

THE FIVE DIFFERENT TYPES 175

indifference with which the bar has thus far regarded legal aid work. There is further
the natural conservatism of the bar, which makes the development of the bar associ-
ations themselves a tedious process, with the result that any activity of the associa-
tion also grows slowly. There are two other limitations which also appear in other
types and are more fully considered in their connection. They are: first, that an or-
ganization does better when it is independent and has to stand on its own responsi-
bility; and second, that although legal aid work is primarily a legal affair, its best
control and direction are secured when to the lawyer's point of view there are added
other opinions representing other elements in the community.

The private corporation societies, the public bureaus, and the departments of or-
ganized charities constitute the three great types of organization. Not only do they
greatly outnumber the other types, but by them is borne the burden of the work. In
1916, out of a total of 117,201 cases, they cared for 116,099 cases.

These three types raise two great questions. The first is as to the respective merits
of the independent society, on the one hand, and, on the other, of the society or bureau
which is not independent, but is a department of some larger charity organization.
This is a question relating solely to organization, and it is the chief question from
the point of view of how legal aid work may best be organized. The private corpora-
tion represents the independent form and the charity bureau the departmental form.
On this issue the public bureaus afford examples of both kinds. There are independent
public bureaus, and bureaus that are departments of welfare boards.

The second question is as to the respective merits of private and public organiza-
tions. This is the precise point which has been so much debated in the public defender
discussions. It is more than a question of organization, it reaches down and calls into
consideration the fundamental principles and meanings of legal aid work. On this
question the private corporation societies and charity bureaus unite to present one
side and the public bureaus to present the other.

Before analyzing these questions and weighing the arguments it is helpful to ascer-
tain the present situation. The following table, arranged according to the size of cities,
sets out where each type is to be found and the number of cases received by each or-
ganization in 1916. It is readily apparent that the private corporation societies pre-
dominate in the larger cities and the charity bureaus in the cities of the second class.
This is made clearer if we add the cities where the work is still in indefinite shape, but
where the charity bureau type has been adopted, as in Bridgeport, Des Moines, Grand
Rapids, Indianapolis, and Seattle. It is further apparent that the private organizations
are to be found mainly in the east, and the public organizations mainly in the west.

176

LEGAL AID ORGANIZATIONS

City

Population '

Type

Cases in 1916

Private Corporation

41,646

New York

5,670,167

Private Corporation

957

Department of Charity

5,788

Chicago

2,521,822

Private Corporation

10,697

Department of Charity

4,685

Philadelphia

1,750,000

Private Corporation

4,845

St. Louis

850,000

Public Bureau

1,235

Boston

767,000

Private Corporation

2,608

Cleveland

750,000

Private Corporation

4,946

Los Angeles

600,000

Public Bureau

8,848

Baltimore

595,000

Department of Charity

376

Pittsburgh

590,000

Private Corporation

681,

San Francisco

530,000

Private Corporation

242

Buffalo

480,000

Private Corporation

1,516

Cincinnati

450,000

Private Corporation

1,698

Milwaukee

448,000

Private Corporation

1,174

Newark

401,000

Private Corporation

2,155

Minneapolis

370,000

Department of Charity

3,029

Kansas City

300,000

Public Bureau

5,270

St. Paul

290,000

Department of Charity

1,749

Portland

275,000

Public Bureau

1,363

Jersey City

270,903

Private Corporation

447

Louisville

265,420

Department of Charity

Rochester

265,000

Department of Charity

382

Omaha

210,000

Public Bureau

1,318

Hartford

150,000

Department of Charity

134

Dallas

135,000

Public Bureau

1,480

Dayton

135,000

Public Bureau

922

Akron

130,000

Department of Charity

Duluth

104,000

Public Bureau

5,629

San Diego

90,000

Department of Charity

Plainfield

20,550 a

Department of Charity

150

Reason and experience unite to indicate that the independent organization, which

generally is synonymous with the private corporation society, has many points of

superiority over the departmental and dependent organization. It is

" ' essential in this connection to stick to facts and not to be misled by

" . terminology. There are departmental bureaus which are independent

Organizations ., , ° ™, . , , .. t. ,

° in all but name. Ihere are private corporation societies which are

not independent as to certain aspects of their work. The truth of the propositions

1 The population figures are taken from the World Almanac for 1917, page 762.
- Figure given in 1910 Census.

THE FIVE DIFFERENT TYPES 177

hereinafter advanced receives excellent corroboration from this very situation, for
invariably in so far as an organization is independent the advantages of the inde-
pendent type are found, and in so far as it has surrendered its freedom of action the
corresponding disadvantages appear.

The independent type of organization, as exemplified by the private corporation
society, makes for greater responsibility and at the same time permits greater freedom
of action. It must stand on its own feet. It cannot hide in the shadow or stay under
the protecting wing of any other organization. Before the community, the courts,
and the bar it must stand or fall according to its own reputation. The issue cannot
be beclouded by any intermediary. That this fact inculcates a feeling of responsi-
bility is undeniable. The executive committee of a general chai'ity has no such in-
terest in, and feels no such responsibility for, a legal aid bureau which is merely a
department of the greater organization, as has the board of directors of the incor-
porated society. It is not without significance that as a rule the best societies are
to-day of the independent type and that the work of an independent legal aid organ-
ization has never been given up. A very great failure in legal aid work is chargeable
to charity organization management in Bridgeport; in Baltimore and Rochester the
work has not developed as it should have during a space of six years ; and in Des
Moines, Grand Rapids, and Indianapolis the charity control has failed to produce
any definite or enterprising legal aid undertaking. It was the realization of these
advantages which led Philadelphia in 1916 and Richmond in 1917 to become inde-
pendent incorporated societies.

Legal aid work, when conducted as a department of charity, has less freedom of
action. In funds, which are its sinews for work, it is often throttled by a charity budget
in which it is but a small item. Its appeal for support, being through the charity,
lacks direct force with the bar which should be its main source of reliance, and the
response depends less on what it has accomplished and more on what the charity in
general has accomplished. If the charity fails to earn public approval, the legal aid
work is also doomed, as it has so resulted in Portland, Oregon. The reports of the
legal aid departments are swallowed up in the general charity reports, and are con-
fined to very brief compass. The legal aid attorneys in Minneapolis and Dayton have
submitted excellent reports about the nature and significance of legal aid work which
have never been published or given to the community in any form. A few paragraphs
are selected by the general secretary or director of public welfare for incorporation
in their annual report. The greater portion of the attorney's report never reaches
any other person. For three years the Bureau in Kansas City published its own re-
ports and in them is contained much invaluable information; during the last three
years, however, its reports have been published as a part of the general report of
the welfare board, with the result that they have shrunk both in size and value and
contain little more than a bare statistical record. For nine years the Cleveland in-
corporated society published annual reports which still rank among the best con-

178 LEGAL AID ORGANIZATIONS

tributions to legal aid literature, but since it has turned its financial control over
to the Cleveland Federation for Charity and Philanthropy, its annual reports have
dwindled to a leaflet, and in the Federation's Year Book it occupies a scant two
pages. In a young movement such as legal aid is, and in one which is not at all
understood, it is essential that the work have adequate presentation. Even the persons
engaged in the work need all the information and assistance that can be gained from
experience in other cities. The burden of leadership in thought and in making the
movement known has fallen entirely on the independent corporation societies. They
have been, and still are, the producers and disseminators of the only legal aid liter-
ature that there is. Had it not been for them, the legal aid movement would never
have been known and its spread from city to city could hardly have been accom-
plished.

With the departmental type of organization there is less freedom of thought
and less initiative. This results from the nature of the arrangement under which the
departmental bureau is customarily conducted. There is a general secretary or director
who stands between the legal aid attorney and the controlling board which alone can
do things. Thus in Minneapolis the attorney reports to the general secretary, and
he in turn reports to the controlling board. This is an unwise arrangement, for no
general secretary is competent to pass on the issues presented. Legal aid work is a
distinct thing from general charity work, it requires the legally trained mind acting
in the light of a knowledge of legal affairs to understand much of its significance and
to chart wisely its course of activity. The general secretary of a charity organization
is disqualified from passing expert opinion on such matters, he lacks the legal train-
ing to apply to them, and he approaches them from an entirely different background.
The same difficulty applies, in most instances, to the controlling board, which has the
final word and determines the budget. A board quite competent to supervise the tra-
ditional charity departments is incompetent to determine the peculiar questions pre-
sented by legal aid work. This checks growth and tends to retard the development
which normally takes place with an intelligent counsel dealing directly with a board
picked because of their peculiar fitness for and interest in directing legal aid work.
The independent organizations always have been and still are blazing the trail.

The greatest flaw in the departmental type is that its power for good is lessened
by the fact that it tends to reach a smaller group of persons than does the inde-
pendent type. The legal aid bureau of an associated charities or federated charities
generally has its offices with that organization. Often the offices are in the local
charity building. It is the customaiy and the natural arrangement for all applicants
to go to a central application desk, and there to be referred to the proper office or
person. These facts give rise to an impression in the community which confuses legal
aid with charity, which in turn has a marked effect in limiting the legal aid clients
to persons who are applicants for charitable assistance. The self-supporting class, able
to pay its own way in the ordinary affairs of life, but unable to meet the unusual

THE FIVE DIFFERENT TYPES

179

expenses called for by any litigation, is strongly inclined to stay away. This tendency
has often been suspected,1 but until 1916 there was no corroborative evidence.

In April, 1916, the Legal Aid Department of the United Charities of St. Paul
moved its offices from the Wilder Charity Building, where it had had offices with the
other charity organizations of the city, to an office building given over largely to
lawyers' offices. Immediately the number of clients doubled. The test is a fair one.
Both buildings are accessible, the Wilder Charity Building is a beautiful modern
structure and the Society's present quarters are in an old, third-class office building.
There are no other or unusual circumstances to account for this almost automatic
doubling of the work. The same attorney remained in charge, and the work was car-
ried on as before. The increase was no temporary flurry, as an analysis of the cases
shows. The change was made April 22, 1916. A comparison of the cases accepted
during the five months ending April 30, 1916, and during the five months following
April, 1916, makes this clear.

In Charity Buildiny

In Office Building

Month Cases

Month

Cases

December 61

May

113

January 42

June

February 50

July

102

March 50

August

April 50

September

109

Total 253

Total

494

This cannot be accounted for by any seasonal variation. The peak of the load for
most organizations comes during the winter months. The sums of money collected
for clients also increased from $2533.47 to $3280.71.

It is possible to ascertain where this increase came from. The number of cases sent
by the charities and the courts remained constant and other sources very nearly con-
stant with the exception of the State Labor Department. From this channel there
came 319 cases as against 128 during the five months' period before the change. This
is reflected in the records of the nature of the cases, which show that the increased
work is mainly accounted for by wage claims, which jumped from 165 to 376 cases.
For a matter of this sort the evidence is remarkably clear and convincing that for-
merly persons who applied at the State Labor Board for assistance in securing their
wages and were referred to the legal aid society, when they went to the address given
and found it to be a charity building, declined to enter and went away, and that now
the same sort of persons with the same sort of cases, having the same feelings and ideas
about themselves, are quite willing to go to the legal aid bureau in its new location.

All these arguments are minimized in so far as the departmental societies are given
autonomy. If a legal aid bureau of an organized charity has in fact its own offices, its
own executive committee empowered to decide and act, its own budget, and the con-

1 Cf. 15 Boston L. A. R. 18; 1 Hartford L. A. R. 3; St. Louis (Bar Ass'n) L. A. R. 3 ; 1 Baltimore L. A. R. 6.

180 LEGAL AID ORGANIZATIONS

trol of raising its finances, no harm is done by adhering to the name. These state-
ments are necessarily generalizations. In a given locality they may be outweighed by
peculiar local conditions. Nor are they to be taken as a disparagement of the work
performed by the departmental bureaus. Some of them, particularly those in Min-
neapolis and St. Paul, have done extremely well. It is the sole purpose of this examina-
tion to state such conclusions as are demonstrable by facts, so that legal aid work may,
in the light of experience, develop as soundly as possible.

§6
In the all-important issue between publicly supported, publicly controlled legal as-
sistance to poor persons and privately supported, privately controlled legal assistance
no distinction need be made between the "public defender" organ-
j izations and the "legal aid" organizations. The conflicting principles

* . presented by the Los Angeles Public Defender and the New York
° Voluntary Defenders Committee are in no wise different from those

presented by the Kansas City Legal Aid Bureau of the Board of Pub-
lic Welfare and the New York Legal Aid Society. In the ensuing discussion no dis-
tinction will be made, and the phrase "legal aid organizations" will be used to include
both groups. The only issue is which type is superior, which type should be selected
for the future development of legal aid work, — the publicly controlled or the pri-
vately controlled legal aid organization?1

Theoretically, the argument for public legal aid is irrefutable. The basis of the
argument takes us back to the beginning of this report, where our ideal of the free-
dom and equality of justice was set forth. Equality before the law is the crux of the
situation; the ideal of freedom is a reinforcing principle which plays a part in so far
as it is necessary to secure the essential principle of equality. Justice must be equally
accessible to all persons, and the administration of justice must deal equally with all
persons. Where equality can be secured only by reducing the price of justice, the cost
must be reduced; where equality can be secured only by making justice free, then
there must be freedom of justice. In the issue which confronts us these ideals take
on concrete form and demand practical application.

Legal aid work is part and parcel of the administration of justice. It is not dis-
pensing charity. It is simply giving or securing to each applicant what is his right.
Historically we can see that the administration of justice by the state as we now have
it has come about by a gradual process of the state's taking over to itself the per-
formance of the various functions which make up the administration of justice.2 At

1 Control and support almost always go together. All publicly controlled bureaus are supported out of public funds.
All privately controlled societies, except three, are exclusively supported by private subscriptions. The Buffalo
Legal Aid Society receives financial assistance from the City of Buffalo and the County of Erie. The Richmond Legal
Aid Society receives free rent in the Juvenile Court Building. The Voluntary Defenders Committee in New York re-
ceives free rent in a municipal building.

2 Zane: Bench and Bar in the Golden Age of the Common Law, 2 Illinois Law Review (1907), 1.

THE FIVE DIFFERENT TYPES 181

one time the function of the judge was in private hands. The lord of the manor was
the judge for his tenants. The church exercised its ecclesiastical jurisdiction over mar-
riage and the administration of estates. In the time of Henry II a step forward was
taken when the greater part of the judicial function was entrusted to judges, respon-
sible only to the king, who as sovereign occupied the position of the modern state.
Many of the ministerial functions were originally in private hands. After a judgment
for damages the plaintiff himself satisfied his judgment by taking away the defend-
ant's property. Now the levy of execution is exclusively in the hands of the sheriff,
a public officer. Arrests and service of process in criminal cases were for years made
by private persons until the police systems were established. In the not far distant
past prosecutions for crime were in private control. A private individual made his
complaint and paid his own attorney to prosecute the case in court.1 This function
was taken over by the state acting through its district attorneys and prosecuting
officers. To-day all the basic component parts of the administration of justice are in
the control of the state, except the part taken by attorneys in bringing and defend-
ing civil suits and in defending criminal matters.

The state enacts the laws, controls the judges, the clerks, the bailiffs, the sheriffs,
the probation staff, the police, the district attorneys, the jurors, and provides the court
houses. If this were enough to secure equality before the law, there would not be the
slightest case for public legal aid bureaus. But we have already seen that in many cases
in many fields of law, the inequality resulting from the inability to employ counsel
vitiates the equality of the whole machinery. We know that this is so because it is the
attorney who supplies the motive power to make the machinery of justice move. If
one were to use a homely analogy, the administration of justice might be likened to
an automobile, in which the law represents the engine, the judge the control, and the
attorney the gasoline. To give to two men exactly the same type of car and supply
one with gasoline and the other with none and then to expect a fair race is obviously
preposterous. So long as the attorney is made necessary by the form of the machinery,
equality can be had only if the attorney's services are available to every one.

The last step in the extension to its natural completion of the state's control over
judicial proceedings is the taking over, so far as may be necessary to secure equality,
of the control of the attorney, thereby guaranteeing that poverty shall bar no one
from securing the attorney's services. It is the accomplishment of this step which the
public legal aid organizations represent. The conception of a judicial proceeding in
which equality is guaranteed by having every participant an officer of the state is no
longer a dream, it may be seen any day in Los Angeles. A deserted wife tells her story
to a district attorney. He makes out a complaint and transfers it to the Public Trus-
tee, who makes a preliminary investigation. The clerk draws a warrant, which is given
to an officer for service. The defendant is brought into court for arraignment and

1 Hyde: Reorganization of the Bar, 8 Illinois Law Review (1913), 239, 240; 5 Journal of Criminal Law and Crimi-
nology, 926.

182 LEGAL AID ORGANIZATIONS

trial before the judge. The state and the prosecuting witness are represented by an
assistant district attorney and the defendant by the Public Defender. If there is a
verdict or finding of guilt, the defendant is put under the supervision of a probation
officer and pays the weekly amount ordered by the court to the Public Trustee.

This is not an argument for the socialization of the bar. It is an argument for
equality. For persons who are able to employ their counsel, no change is necessary,
but for the vast multitude who cannot, some readjustment is imperative. It is not
a claim that the state should pay all lawyers. It is a claim that the state should pay
for lawyers to represent poor persons in proper cases where the attorney's services are
necessary to secure equality before the law. It must be made clear that the case for
such state paid attorneys is not based on sentimentality, or charity, or kindness, or
anything of the sort. Nor is it a progressive proposition in the sense that it is opposed
to a conservatism that cherishes the good in our existing institutions. It is based on
fundamentals as to which citizens of all opinions — conservatives and radicals — are
in accord.

The point is that in all litigation the state is the great silent party in interest.
This is clear in criminal cases, in divorce matters, and in disbarment proceedings. It
is equally true in all so-called private litigation.1 If this were not so, why should the
state require that parties to private litigation use its laws, its courts, and its judges
to determine their private quarrel? Originally the state was compelled to take a hand
to preserve the peace, to prevent private vengeance, self-help, self-redress, all of which
disturbed the King's peace. With the rise of the ideals of democracy a far better
reason was supplied. Our government was designed to secure through its laws the in-
dividual rights to life, liberty, and property, and the more newly conceived social
interests. The laws are able to effect these purposes only through the administration
of justice. When a man by his labor has accumulated property there are persons who
would like to take it away from him by force or trickery. To permit it would be to
sanction anarchy. The law forbids, and it attains its end through the administration
of justice, which enjoins the wrong, or gives redress, or punishes the offender. If, for
any reason, the man were prohibited from obtaining the assistance of the law through
the processes of the administration of justice, his rights would be worthless, the law
would be an impotent sham, and his property could be taken with impunity. Yet
this is precisely the position of the poor.

To the conservative the proposal that the state should provide counsel for the poor
seems class legislation. By this he means that it is unjust to tax those who have ac-
cumulated property by their energy, frugality, and enterprise in order to help those
who have not. In other words, he feels that equality of opportunity becomes mean-
ingless if those who take their opportunities are to be penalized in favor of those
who do nothing. When properly applied these points have great force, but they have

1 Cf. Blackstone's statement : "Besides, the public is in nothing so essentially interested as in securing to every indi-
vidual his private rights." 1 Blackstone's Commentaries, 139.

THE FIVE DIFFERENT TYPES 183

no application within the realm of justice. Exact justice is the basis of equality of
opportunity. It is as repugnant to the conservative as to any one that a man should
prosper by employing persons to work for him, taking the profits of their labor, dis-
charging them without pay, and being enabled to pursue such a course with impunity
because of the inability of the workmen to invoke the machinery of justice in their
behalf. Yet this non-payment of wages has happened in hundreds of thousands of
cases.

There is no justification for saying that justice should be denied if a person cannot
pay the price fixed. No one would claim that the only persons entitled to protection
are those who are able to defray the cost of that protection by paying the judge and
clerk their salaries, the jurors their fees, and by renting the court room. The cost of
justice is variously estimated. In Massachusetts the expense to the state of a civil
jury trial has been fixed at $248.89 per day.1 The Public Defender in Los Angeles
has reported that the salaries, fees, and overhead expenses in a criminal jury trial
amount to $200 per day.2 The daily cost of the Philadelphia Court of Common Pleas
is about $150.3 The expense of a jury trial in the Chicago Municipal Court is not
less than $75 per day.4 Any serious proposal to restrict the use of the courts to only
such persons as could defray these expenses is inconceivable. Justice is not merchan-
dise; it cannot be granted or withheld according to the purchasing power of the
applicant. It is the affirmative duty of the state, at public expense, to do all that is
needful to secure justice to every one. In the main this is perfectly recognized. The
state does afford all that is necessary with the exception of the attorney. As this
omission is fatal in certain cases, the argument concludes that the state must admin-
ister its justice better by supplying the attorney in such cases.

Emergencies and times of stress often serve to make clear the injustice of a course
of conduct which is tolerated in every day life. After the great explosion of ammu-
nition at the Jersey City wharves, known as the " Black Tom " explosion, the City
Attorney's office publicly offered to accept the claims of the families whose men had
been killed and to bring suits for negligence without any charge to the clients what-
soever. The injustice of leaving these destitute families without redress or of com-
pelling them to seek relief through the usual channel of the contingent fee became
so clear that the public appreciated and undertook its responsibility. The federal gov-
ernment, in cooperation with the states, has undertaken to furnish free legal aid to
the ten million men of draft age in connection with the legal problems raised by the
new classifications of men under the selective draft law.5 The attorneys who are giv-
ing the advice are not to be paid out of public funds> but they are under govern-

1 Report of the Massachusetts Industrial Accident Board 0/1914-1915 (Public Document 105 of 1916), page 71.

2 In a supplemental report to the Report of the Public Defender to the Board of Supervisors for the year 1915-16.

3 Address of Judge Charles L. Brown to the Men's Club of the Market Square Presbyterian Church (1914), page 12.

4 Eighthand Ninth Chicago Municipal Court Reports, page 130. For a general article see Rood: The Cost of Public
Justice, 12 Illinois L. Rev. (1918) 540.

6 A concise presentation of the regulations is contained in 2 Mass. Law Quarterly, 563 et seq.

184 LEGAL AID ORGANIZATIONS

mental control and the clients are not to pay fees. This is public legal aid work in
one limited field. It is the assumption by the government of the responsibility which
during the first draft the legal aid societies all over the country met to the fullest
extent of their resources.

If this position is well taken, and the logic behind it is undeniably strong, it fol-
lows that it should be the state, and not any private group, which should provide
and control the attorneys for the poor. The administration of justice is a public
affair, every part of which must be subject to public control. These attorneys for
the poor stand on the same footing as the judges. Both are supplied by the state be-
cause only through them can the administration of justice operate. Such attorneys
should no more be left to private selection or made subject to private control than
should the judges. Further, it is a fact that the privately supported agencies are
unable to meet the entire need because they lack the necessary funds. The state can
recognize no such limitation. In its supreme duty of administering justice, the state
cannot permit a condition under which its administration is equal or unequal, a
success or a failure, according to the ability or inability of a handful of private per-
sons to raise a certain amount of money.

In passing from the theoretical to the actual we leave an argument that is all in
favor of publicly controlled and publicly supported legal aid organizations and are
immediately confronted with a practical situation which gives rise to grave doubts.
All of the public bureaus are controlled by municipal governments except that of
Los Angeles, which is a county office. It is a commonplace that many American mu-
nicipalities possess improper and inefficient governments in which politics play an
undue part. It is always a question whether it is safe to entrust an essential service,
such as legal aid, to such a government. The privately incorporated societies in the
larger eastern cities have frankly been afraid to surrender any part of their autonomy
to political control.1

Certain direct advantages have resulted from the fact that a legal aid bureau was
a public undertaking. St. Louis affords an excellent illustration because, during its
history, it has been both a private and a public organization. The investigator re-
ports that since the society came under public control her position has carried with
it much greater dignity and power, enabling her to use channels formerly closed and
to do more efficient work. The Bureau has the whole-hearted cooperation of the other
public departments. As a private society there was great difficulty in getting justices
of the peace to accept in forma pauperis affidavits, thereby waiving their costs, but
now they offer no objection.2 There was a further difficulty in that the jurors' fees
in the justice's court amounted to nine dollars, and these had to be paid. Now, if
a jury is claimed, the Bureau is not obliged to pay the fees because the jurors are

1 The New York Legislature has authorized the Board of Estimate of the City of New York to appropriate $25,000
for the Legal Aid Society. The New York Society has not used this fund. It has always been afraid of political con-
trol. See 23 N. Y. L. A. R. 13 ; 32 Ibid. 10: 11 Ibid. No. 4, p. 2 ; History of the Legal Aid Society, page 48.
1 Report of Proceedings of the Fourth Conference of Legal Aid Societies, pages 86, 88.

THE FIVE DIFFERENT TYPES 185

required to serve as a public duty. Even more important, the public bureaus are
unquestionably better known, they reach a wider field, and they are answering the
demand for legal assistance with a nearer approach to completeness than the private
societies. This fact appears very clearly in the later discussion as to how far the legal
aid organizations are meeting the full need.1 It may here be noted that since the
Hartford society became a public bureau on January 1, 1917, its work has more than
tripled.2 In St. Louis the work has likewise made a substantial increase.3 Detailed
records are available and from them it appears that the nature of the cases, the sources
of the cases, the nationalities of the applicants, and the fees charged, are almost exactly
the same under public control as they were when the work was controlled by the Bar
Association.

The public legal aid bureaus started out with a splendid record. Most of the posi-
tions in the legal aid staffs were put under civil service regulations, high standards
were set, and there was no sign of political interference. It has been felt by persons
who were closely watching this development that any original success was not con-
clusive, that the real test would come only after the bureaus had been in existence
a few years, long enough for the novelty to wear off and for public interest to wane.4
Until 1917 the outlook was most hopeful. Los Angeles, Portland, Kansas City, St.
Louis, Dallas, Duluth, Dayton, Hartford, and Omaha were doing splendid work, they
had placed excellent attorneys in charge, and in several respects they were proving
more successful than the private societies. Thus, in Kansas City, the Legal Aid Bu-
reau established a much higher standard in the treatment of desertion cases than any
private society had attained. In one year thirteen deserting husbands were traced and
brought back from Missouri, Oklahoma, Colorado, Nebraska, and Washington at an
expense of six hundred dollars. The Bureau officially stated that if a deserting hus-
band could be found, no expense would be spared in bringing him to justice. The pri-
vate societies have been prohibited by financial considerations from even attempting
this work. Most of the attorneys in the public legal aid bureaus were placed under
the civil service, and were selected after examinations into their fitness. Politics did
not venture to meddle in their offices. There was a change of administration in Kansas
City, the Republicans replacing the Democrats, but the legal aid attorney was not
interfered with, the budget appropriation was kept up, and the Bureau's work went
along uninterruptedly.

In 1917, however, the danger of this public type of legal aid organization was
made clear. In May a new administration took over the city government of Dallas.

1 Chapter XX, Present Position of Legal Aid Work, § 1, page 192.

2 The work in Hartford is naturally small. For three years the organization was private. During the first year it
averaged 6 cases a month, during the second 7 cases, and during the third 8 cases. The public bureau has averaged
27 cases a month.

3 This does not appear from the records in the Appendix because since the Bureau became a public undertaking no
record of cases is made in which advice only is given.

4 Cf. statement of Rudolph Matz, late President of the Chicago Legal Aid Society, in Report of Proceedings of the
Fourth Conference of Legal Aid Societies, pages 61, 52.

186 LEGAL AID ORGANIZATIONS

The Mayor dismissed the director of the Department of Public Welfare under which
the Legal Aid Bureau operated. He then sought to appoint a personal friend as at-
torney for the Bureau, and when that gave rise to a storm of public protest he abol-
ished the Bureau entirely. Legal aid work no longer exists in Dallas. In July a new
administration was elected in Portland, Oregon. The attorney holding the office of
Public Defender had attained the highest rank in a competitive civil service examina-
tion for the position and had received a permanent appointment. He had not supported
the newly elected Mayor in his campaign, however, and on July 13 the City Council,
at the Mayor's request, without any public hearing and without notification to the
Public Defender, abolished the office. In both instances the evidence is clear that the
bureaus were doing good work, that the attorneys were superior men, and that the
discontinuance of the work was due solely to petty political considerations. As if to
furnish a striking contrast, the year 1917 also witnessed the establishment by private
enterprise in New York of a privately controlled, privately supported, Voluntary
Defenders Committee, which by virtue of its personnel, equipment, and work ranks
among the very best legal aid organizations in the country.

Because of this unhappy discrepancy between theory and fact, the only conclusions
that can be drawn as to the respective merits of public and private legal aid organ-
izations are local rather than general in application. Where local political conditions
permit, there is every reason for organizing legal aid work as a public affair under
public control. On the other hand, in cities where private legal aid organizations are
well established, there is every reason for them to remain as they are. They possess
a freedom of action, a liberty in taking risks in making experiments, which will leave
in their hands for several years to come the duty of leadership in the development
of legal aid work.

Nevertheless, there should be a clear consciousness on the part of all legal aid
organizations that they are engaged in the performance of a public function, and that
their ultimate goal is to become a part of the state's administration of justice. Thus
far the only attempt at public control has been through the municipality, which is un-
doubtedly the weakest part of our entire structure of government. It is easily con-
ceivable that some plan may be devised whereby the value of public control may be
secured without paying the price of diminished efficiency through political inter-
ference. As legal aid work relates itself to the administration of justice rather than
to municipal government, it is prefei-able that the work should be organized and
controlled as a part of the judicial machinery which is increasingly being taken out
of the field of partisan politics. In the last chapter of this report, dealing with the
future of legal aid work, a suggestion of this sort is considered.1

1 See pout. Chapter XXV, A More Equal Administration of Justice, § 3, page 246.

Chapter XX
PRESENT POSITION OF LEGAL AID WORK

The largest law office in the United States is the Legal Aid Society of New
York, with nearly 40,000 new cases annually. The next largest office is the Legal
Aid Society of Chicago, with 12,000 new cases annually. John H. Wigmore.1

§ 1

THE present extent of organized legal aid work involves two considerations :
first, measured by geography and by the size of cities, how far have the legal aid

■n . t-. , , organizations been able to extend themselves? second, measured bv

Present Extent ft . .-

r..i w j, the need, how far have the organizations been able to extend their

assistance in the cities where they exist?

If the cities in which legal aid organizations are to be found were marked on a
map of the United States, the eye would at once see that there are two great areas
wherein legal aid work is non-existent. One is the far west. Bounded by lines run-
ning Duluth-Minneapolis-Omaha— Dallas on the east and Portland-San Fran-
cisco—Los Angeles on the west, there is an enormous extent of territory without
legal aid organizations. This is all newer country, there is as yet no great need for
the work, for there are almost no large cities.2 The extension of legal aid work into
this field is only a question of time. If a need manifests itself, societies or bureaus will
be formed and the work undertaken in due course.3

The second area is that of the southeast. South and east of a line running Rich-
mond-Louisville-Nashville-New Orleans no legal aid work is done. The organiza-
tions in these boundary cities have not flourished as well as elsewhere. The situation
here differs radically from that of the far west. There is great need of the work, for
there are large cities with much poverty. It is not a question of orderly extension in
due course, for the attempt to plant legal aid institutions has already been made, but
without success. In Atlanta and Birmingham societies were started under the inspi-
ration of small local groups, did well for a while, and then were allowed to lapse. In
Chattanooga, Knoxville, and Memphis some steps for the formation of organizations
were taken, but the plans have accomplished practically nothing. Here is to be found
the only general failure of the legal aid idea. No satisfactory explanation of this con-
dition has ever been offered. Apparently there is need for the assistance of some
strong central organization to cooperate with local groups and to assist the work
until it shall have won local interest and support.

This geographical examination reveals the extent of the work only in a most gen-
eral way. A far better test is afforded by cities, for organized legal aid work is es-

1 From an editorial in 12 Illinois Law Review (1917), 38.

2 A movement to start an organization is underway in Salt Lake City. Denver once had a flourishing society which
does not now exist.

3 Letters from attorneys in Washington, Montana, and Utah have already come to some of the larger eastern organ-
izations asking for information about the work.

188

LEGAL AID ORGANIZATIONS

sentially a city problem. We have earlier seen that the growth of urban population
was a prime factor in bringing about the breakdown of the administration of jus-
tice, and that it is in the large cities that the great denial of justice exists. The chief
defect in our traditional administration of justice which causes hardship to the poor
is the expense of counsel. In the country towns and smaller cities this difficulty is
overcome by the charity work of the lawyers. It is the general opinion that it is
rare indeed for an inhabitant of a small town to be denied legal assistance even if
he is unable to pay for it. Just where the line of demarcation is to be drawn is not
certain, but there is good authority for fixing it at cities with a population of one
hundred thousand. In connection with this study letters were sent to the charity
organization societies (also called "associated," "federated," and "united charities")
in all cities and towns in the United States where there were no legal aid organiza-
tions, asking if they experienced a need for organized legal aid work. The replies in-
dicate that the one hundred thousand population mark is as accurate a dividing line
as can be fixed. There seems to be a tacit agreement that this is the point at which
a city becomes a large city and at which those problems that are essentially "city"
problems make their appearance.1

In considering how far the legal aid movement has been able to cover the large
cities we face three situations: cities with no legal aid work, cities with very little
legal aid work, and cities having definitely established organizations doing substan-
tial work that gives every indication of steady, consistent development. The follow-
ing table presents the facts in summary form. We know that legal aid work started
in New York and Chicago, our two largest cities, so that the question is how far the
leo-al aid movement has been able to work downward into the cities with smaller
populations. In order to indicate this, the cities are divided into five groups, each
lower group including the higher group, so that the total number of cities having
a population over the specified figure may appear.2

Total Cities of this

Class in the

United States

Legal Aid Work

Class

None

Very Little

Definitely
Established

1. Cities over 350,000

2. Cities over 300,000

3. Cities over 200,000

4. Cities over 150,000

5. Cities over 100,000

18
21
33
41

0
0
3

18
19
26
29
34

For the purpose of this test, which aims to ascertain to what extent legal aid or-
ganizations have been established in our large cities, we may consider that the situ-

1 Dr. King in his book Wealth and Income of the People of the United States, in discussing the growth of large cities
(page 20), fixes the line at cities with a population of over one hundred thousand.

2 The table is based on the legal aid situation on January 1, 1917. The cities are grouped according to the population
credited to them on that date by the World Almanac for 1917. For this purpose the 1910 Census figures are too old
to be accurate.

THEIR PRESENT POSITION

189

ation in cities having no work or very little work is unsatisfactory, and that in cities
having definitely established work it is reasonably satisfactory. A recapitulation in
percentage terms, based on the preceding table, shows very clearly the present extent
of legal aid organizations.

Class

Total Cities of this

Class i?i the

United States

Percentage of Cities in ■

vhich Legal Aid Work is

Satisfactory

Unsatisfactory

1. Cities over 350,000

100.0

2. Cities over 300,000

90.0

10.0

3. Cities over 200,000

78.8

21.2

4. Cities over 150,000

70.7

29.3

5. Cities over 100,000

47.9

52.1

There is still much room for the extension of legal aid work into new fields. The
large cities are by no means completely covered. When it is remembered that the
idea did not begin to spread until 1900, it is remarkable that it has been able in
seventeen years to take definite shape in all the largest cities and in three-quarters
of those having over two hundred thousand inhabitants. The problem of expansion
for the immediate future — and one which will call for intelligent direction from
some central body — is to establish organizations in the twenty-five cities having
none and to strengthen those in the nine cities where the movement is still weak.
This is essentially an extension into a new class of citv, one whose population is
above one hundred thousand but below two hundred thousand.

In taking up the question of the extent to which the legal aid organizations in the
cities where they exist have been able to meet the full demand of the poor for legal
assistance, we at once encounter a difficulty because we have no objective standard
by which to measure their work. We can estimate the number of the poor in the
larger cities, but there is no way of knowing how many of them each year are involved
in litigation or need legal aid. It is possible, however, to work out a reasonably ac-
curate standard suitable for our immediate purpose. The public legal aid bureaus, in
localities where they exist, are well known to, and very generally used by, the poor
of the city. The Kansas City Legal Aid Bureau is the oldest of this type, and un-
questionably is the best locally known legal aid organization in the United States.
In 1915, which was a normal and average year, one out of every 64 persons in the
total population1 applied to it for assistance. The Los Angeles office is the second
best known, and in 1915 it received one application from each 78 in the population.2
On the basis of this Kansas City— Los Angeles record, we may say that the standard
annual legal aid clientele would consist of one person for each 75 inhabitants. There
are no data anywhere which would show this estimate to be materially in error and,
on the other hand, there is evidence to indicate that it closely approximates a true

1 The Bureau serves a population wider than that within the city limits, which in 1915 was fixed at 400,000.

2 Los Angeles is a county office serving the entire county population, which in 1915 was fixed at 800,000.

190 LEGAL AID ORGANIZATIONS

standard. Thus, according to our criterion, Kansas City and Los Angeles were re-
ceiving as many applications as they should, so that during 1916, which was a year
of more steady employment giving rise to fewer wage claims, they should have re-
ceived somewhat fewer applications. Their records show this to have been the case.1
Considering the cities where private societies have longest been established : the New
York organization in 1915 extended assistance to one in each 116 of the population,
and it is known that there is a large demand for legal aid which is not being met be-
cause of inadequate finances. The Chicago organizations in 1915 received cases from
one in each 162 of the population: the Chicago Legal Aid Society has stated that
if funds permitted, it could double its work; and the Chicago Bureau of Personal
Service, with increased resources, did in fact during the next year extend its work
85 per cent.

In many ways it would be preferable to measure the extent of legal aid work by
the 1915 figures, but as this would exclude organizations formed in 1915 or early
in 1916, it is necessary to take the fiscal year of 1916. In the following table are set
out, first, what the standard clientele of each legal aid organization should be on the
basis of one client for each seventy-five inhabitants;2 second, the actual number of
cases received during the fiscal year of 1916; third, the percentage that the actual
number bears to the standard; and fourth, in an outside column, the per capita amount
expended in each city for legal aid work, for there is a close relation between the
financial condition of the societies and the extent of their work. Such local factors
as enter in to make the table inaccurate for comparative purposes are set out in the
notes.

Table showing Present Extent of Legal Aid Work

Legal Aid
Organizations in

Standard
Clientele

Cases in
1916

Per Cent of
Standard

Per Capita

Amount Spent

in Cents

Kansas City

5,333

5,270

99.0

1.05

Los Angeles

10,666

8,848

83.0

2.35

Dallas

1,800

1,480

82.0

1.78

Duluth

1,386

80.0

New York

75,602

48,391

64.0

1.11

Minneapolis

4,933

3,029

61.0

.93

Plainfield

274

150

54.0

Dayton

1,800

922

51.0

.97

1 The work in Kansas City decreased from 6202 eases in 1915 to 5270 in 1916 ; in Los Angeles from 10,277 in 1915 to 8848
in 1916; the decreases being 15 per cent and 14 per cent respectively.

2 Since 1910 there have been such great changes in urban population, as notably in Cleveland and Detroit, that the
Census figures are wholly antiquated. The figures for population on January 1, 1917, as given in the World Almanac,
are used.

3 The Duluth Free Legal Aid Bureau case figures include the Municipal Court probation cases, so that they cannot
be used in this connection. For the same reason the expense apportionable to the legal aid work is not known. A
careful estimate, however, shows that Duluth ranks no lower than 80 per cent.

4 Legal aid expense not known, as the figures are not separated from the general budget of the Charity Organiza-
tion Society.

THEIR PRESENT POSITION

191

Legal Aid

Standard

Cases in

Per Cent of

Per Capita

Organizations in

Clientele

1916

Standard

Amount Spent
in Cents

Cleveland

10,000

4,946

49.0

.43

Omaha

2,800

1,318

47.0

.31

Chicago

33,624

15,382

46.0

1.73

St. Paul

3,866

1,749

45.0

.63

Newark

5,346

2,155

43.0

.78

Portland1

3,666

1,363

37.0

.71

Boston 2

10,234

2,608

25.0

.84

Buffalo

6,400

1,516

24.0

.49

Cincinnati

7,517

1,698

22.0

.30

Philadelphia

23,333

4,845

21.0

.25

Milwaukee

5,983

1,174

20.0

.45

Nashville

1,853

260

14.0

Jersey City

3,612

447

12.0

Rochester

3,533

282

11.0

.49

Columbus

2,800

300

11.0

St. Louis

11,333

1,235

11.0

.686

Cambridge

1,466

104

7.0

Hartford

2,000

134

6.7

.08

Richmond

2,133

121

5.6

.02

Pittsburgh

13,904

684

4.9

.32

Baltimore

8,782

376

4.2

.17

Detroit

11,000

410

3.5

.06

San Francisco

7,133

242

3.4

.18

San Diego

1,200

2.3

.01

Louisville

3,539

2.2

Washington, D. C.

4,904

1.5

.00

New Orleans

5,333

1.4

.02

Akron

1,733

1.2

.00

New Haven

2,133

.00

Eliminating those organizations whose case figures for one reason or another are
not closely accurate, it appears that the general average attained by thirty cities
is 28.1 per cent. In other words, it is undoubtedly true that thus far the legal aid
organizations as a whole have not developed sufficient strength to satisfy the entire
need. They have been able to accomplish only one- third of their whole aim. As many

1 The ca.se figure represents only the public defender's criminal work. No statistics of civil cases were kept

2 The standard is not strictly applicable to Boston because in that city wage claims are collected by the State Com-
missioner of Labor. Semble Chicago and Cleveland, owing to the existence of the small claims courts.

3 The Nashville expense figures could not be secured.
- Complete expenses for the year are not known.

5 In Columbus the attorneys volunteer their services and pay the incidental expenses, so that no total expense figure
can be computed.

6 In St. Louis cases calling only for advice are not recorded. If these were known, it is probable that St Louis would
rank at about 50 per cent.

7 Law school students constitute the staff in Cambridge. Expenses are nominal and are not stated.

8 The expenses of the Legal Aid Committee are not kept distinct from those of the Associated Charities.

192 LEGAL AID ORGANIZATIONS

of the organizations are new, the result of this test is not surprising; but the fact
remains that if organized legal aid work is to solve the problem of the denial of
justice, it must in the near future find the means and the resources to extend its as-
sistance to this great group of persons who thus far have not been reached.

A division of the organizations according to their various types gives interesting
results that bear out some of the observations made in the preceding chapter. It
is obvious that the public bureaus are far better known and that, because they have
larger funds at their disposal, they are more nearly able to satisfy the demand. It is
also clear that the independent private corporation societies are able to reach and to
care for a much wider field than the bureaus which are organized as departments of
charities. A resume, based on the preceding table, shows in percentage terms how far
the organizations, grouped according to type, have been able to attain the standard.

Type Per cent of Standard

1. Public Bureaus 72.4

2. Private Corporation Societies 30.6

3. Departments of Charities 18.7

4. Law School Societies 3.1

5. Bar Association Societies 5.3

6. Miscellaneous 10.0

§2
While it is true that the legal aid movement still has a long road to travel, it is
equally true that already the existing organizations hold strong positions in their
respective communities, and that more than any other agency they are

° ' striking at the root difficulty in our administration of justice by plac-

'" ing at the disposal of poor persons their staffs of skilled attorneys.

The legal aid organizations of the United States are to-day providing a corps
of one hundred and seventy-five attorneys, all members of the bar and admitted to
practice in all courts. Of these, sixty-two devote their entire time to the work and
one hundred and thirteen are employed for part of their time, which ranges from
one-third to one-half of the working day. These attorneys are assisted by sixty-three
clerks and stenographers on full time, six on part time, and by thirty-three investi-
gators and social workers who spend their entire time in legal aid service. This force
of two hundred and sixty-seven persons, especially trained in legal aid work, consti-
tutes a mighty force for making the position of the poor more equal before the law.
In addition to these paid staffs, there is a much larger number of volunteer attorneys
and workers who give a measure of their time which in the aggregate forms no incon-
siderable item.

Legal aid work is essentially a young lawyer's work. It has been said with much
truth, "In such excellent work every member of the bar might well bear a part. But

THEIR PRESENT POSITION 193

it appears that the older members have left it all for the young ones."1 There are
twenty-eight organizations that have attorneys in charge of their work, and these ex-
ecutive attorneys, on an average, have been members of the bar for only seven years.
As a number of these attorneys have been in charge for several years, if figures had
been compiled three or four years ago, they would have shown a still younger group
of leading attorneys. The assistant attorneys on the staffs are almost entirely even
younger men.

All praise is due to the loyalty of these young attorneys to the cause of legal aid
work. As Mr. Briesen has written, "Its success depends entirely on the purest devo-
tion of its attorneys, upon an almost religious denial of every particle of self-interest
on their part." They have been faithful to their trust. The present position of legal
aid work is due almost entirely to them. They have been the leaders, the organizers,
the workers, the thinkers, and the developers. If any older member of the bar is en-
titled to take credit unto himself, it is Mr. Briesen, and yet he has repeatedly taken
occasion to pay his tribute to the efforts of the younger attorneys.2 No one fact
impresses the observer who sees one office after another more than the courage, zeal,
and devotion which they everywhere manifest. To these men, invariably overworked,
generally underpaid, struggling with insufficient equipment, sacrificing their oppor-
tunity to build up any private practice of their own, the entire profession owes a great
debt. Legal aid work is what it is to-day, it has advanced as far as it has, its reputa-
tion is clear and free from suspicion because of them.

The greatest weakness of organized legal aid work, the one great factor which con-
stantly bars its path, and which may ultimately prove its undoing, is its lack of funds.
The reason that the existing organizations have not more completely
' answered the demand of the poor for legal assistance is that they are

grossly under-financed. This ever present condition of an impoverished
treasury has forced the two greatest mistakes in the development of the work. It
deterred the organizations from accepting the cases of injured workmen,3 and it has
precluded them from entering the criminal field.4 Inadequacy of support compelled
the New York Legal Aid Society to give up its work in Brooklyn for a while and
still makes it impossible to open sorely needed branch offices in the Brownsville and
Williamsburgh districts and in Queens County.5 Mr. Briesen in a speech on "The
Future"6 pointed out the great obstacle when he said, "Our hands are tied." The Chi-
cago Legal Aid Society, adopting the high courage of its leader, the late Rudolph
Matz, determined to accept its full responsibility, and to meet the entire demand, with

1 From an article in 18 Case and Comment (1912), 463, quoting the St. Louis Republic.
'23 N. Y. L. A. R. 3; 25 Ibid. 17. 3 See ante, page 85. * See ante, page 155.

6 41 N. Y. L.A. R. 28. 6 11 N. Y. Legal Aid Rev., No. 4, p. 3.

194 LEGAL AID ORGANIZATIONS

faith that its work would be appreciated and the necessary support would be forth-
coming. In 1914 it had climbed well toward its goal,1 but the financial support did
not materialize, and it was forced to make drastic retrenchments. It is now able to
keep its office open for clients only two hours a day, thereby mechanically reducing
the number of applications, and it is forced to entrust much of its work to volunteers.
Everywhere among the privately supported organizations the story is the same. Some
of the public bureaus are in a stronger position, but even their finances are not yet
adequate. The organizations all live a hand-to-mouth existence, which is not only de-
pressing to the workers, but is a repressive force that keeps the legal aid work down
and prevents it from accepting the great opportunity which awaits it.

Thousands of persons have been denied justice because the organizations were un-
able to extend assistance to them. Within the organizations unfortunate results have
been produced. Boards of directors have been forced to underpay their staffs. This
has meant that young men, attracted to the work by their ideals of service, have at
the end of a few years been automatically forced to abandon the work in order that
they might earn their living. There has been a constant change of personnel which
has greatly impaired the efficiency of the work,2 and it has made more difficult the
evolution of any science in its conduct. It has tended to narrow the conception of the
work by keeping it intensely local. Few of the executive attorneys have ever had time
to learn much more than how to conduct their own offices. About the time when they
have mastered that and are beginning to observe what is going on in other cities, they
are forced to leave the service and their experience and ideas are lost.

Taking the figures from the societies which pay their executive attorneys anything,
it appears that seventeen organizations retain men for their full time at an average
yearly salary of 82217. Excluding the salary of the chief attorney for the Voluntarv
Defenders Committee, which is the only organization thus far to be put on a straight-
forward business basis, the average salary drops to $1887. The seven organizations
that retain men on part time (one-half to one-third of their time) pay an average
yearly salary of $628. It is perfectly apparent that at such figures the legal aid soci-
eties cannot command or retain the services of the type and calibre of men they ought
to have and must have if their work is to be properly conducted and successful.

When the nature of the work is considered, the extreme poverty of the organiza-
tions is the more remarkable. They are engaged in an essential public service; they
are performing for the community an obligation which comes before any duty to give
charitable support. As careful an observer as Lyman Abbott has stated, "The first
duty of society to the poor is not to give them charity but to secure them justice."3
If the work were done at an enormous cost, an explanation would be afforded; but in
point of fact legal aid work is the least expensive of all so-called charitable under-

1 Measured according to our standard previously laid down, the work in Chicago in 1914 was answering 64 per cent
of the entire need, as against 46 per cent in 1916.

2 14 Boston L. A. R. 5. a 4 N. Y. Legal Aid Review, No. 2, p. 2.

THEIR PRESENT POSITION 195

takings. In the year 1916 the total cost of thirty organizations, which took care of
over one hundred thousand cases, was only $181,408. As a part of this gross expense
was met by fees paid by clients, the net average cost to the community for each case
undertaken was about one dollar and fifty cents.1 The annual expense of two or three
first-class children's agencies or general charities would exceed the entire expense of
these thirty legal aid organizations.

Legal aid work is carried on entirely by current subscriptions. The societies start
each year with no balances, with no assured income, so that they are forced to mea-
sure the extent of their work from month to month according to the donations which
they may receive. Of thirty-five societies from which accurate statistics are available,
thirty have no endowment whatever. The endowments and invested funds of the
societies in New York, Chicago, Philadelphia, Boston, and Pittsburgh amount to a
total of only $37,356.86. How pitiably small this figure is may be seen by contrasting
it with the endowment of a single well-financed agency such as the Massachusetts
Society for the Prevention of Cruelty to Children, which has invested funds to the
value of $352,198.2

Legal aid work in general does not receive any financial assistance from state or
municipal governments. The few public bureaus are, of course, supported by public
funds. Of the twenty-seven non-public organizations as to which accurate statistics
are known, only three are publicly aided. The Buffalo Legal Aid Bureau receives an
annual grant of $750 from the county of Erie and a like grant from the city of
Buffalo. This exceptional situation is due to the earnest efforts of the Bureau's presi-
dent, John Alan Hamilton, who requested the appropriations on the straightforward
basis of services rendered, which it was easy enough to prove. The Voluntary Defend-
ers Committee is given free rent, and the Richmond Legal Aid Society is permitted
to use a room and the telephone in the Juvenile Court Building. The other private
organizations — and it is this group which is still doing by far the greater portion
of the work — receive nothing.

The work has had to be financed by periodic appeals to the bar and to the public.
The results have been wholly unsuccessful. Various reasons are ascribed for this failure,
of which two are most prominent. Financing is a matter for the boards of directors
or executive committees. These boards, consisting in the main of lawyers, seem on
the whole to have been sadly lacking in imagination and enterprise, so that they have
failed to arouse any general interest in the work. It is certain that the legal aid idea
has not been made clear, and that even to-day the work is very generally unknown.
Although legal aid societies have existed since 1876 and the public defender offices
only since 1914, the latter, due to two or three excellent publicists, are to-day far
better known in the United States. Seemingly there has not been great difficulty in

1 The figure varies from city to city. In New York it has been below one dollar per case for years; in Kansas City
and Cleveland it has been as low as fifty cents per case.

2 Report of the Massachusetts State Board of Charity for 1917, page 102.

196 LEGAL AID ORGANIZATIONS

securing legislative appropriations for the public defenders work, and in New York,
where the undertaking is privately financed, the committee in charge was able to
secure in a short space of time nearly as large an income as the Legal Aid Society
has been able to acquire after forty-one years of service.

The second reason alleged is that legal aid work, from its very nature, lacks the
appeal which other sorts of charities possess, so that its voice is lost in the multitude
of appeals with which the public is deluged.1 This reason must be accepted with some
reserve. While the civil work of the legal aid organizations may not be as dramatic
as the criminal work of the public defenders, it is full of vital interest if the proper
persons could be found to give it adequate expression. Within the four walls of the
legal aid offices human life is laid bare. More tragedies and comedies are enacted than
can be seen on any stage. The people of the cities march in endless procession through
the offices, leaving behind them a composite picture of life in our great cities. They
are not the wrecks and failures of our civilization ; they are self-respecting, self-sup-
porting persons. As nearly as one group can, they represent the common people. What
they think, how they fare, wherein they are handicapped, are matters of concern to every
one, for it is to make the lives of just such persons somewhat brighter and fairer that
we are trying to build a civilization founded on democracy.

That legal aid work fails to carry any appeal is true to this extent. For a definite
appreciation of why the poor are denied justice and of how essential organized legal
aid work is to a more equal administration of the laws, some background of know-
ledge concerning our legal institutions is necessary. Every one can understand that
an abandoned family is likely to starve if it is not relieved; but it is not so self-evi-
dent that the calamity might have been prevented if the processes of the law could
have been invoked, and that to seek redress through the law required somebody to
provide free legal assistance. This very situation ought to constitute a strong and
direct appeal to the members of the bar. Boards of directors have not thoroughly
cultivated this field and so have met with but moderate success.2

This financial obstacle, ever present with every organization, is to-day the great
limitation of legal aid work. It lacks the sinews of war. It is in leash, held in at every
turn. Bad financing as to income is the rock on which all private organizations may
go to pieces. All other factors in the present situation are decidedly hopeful. But this
problem remains to be solved, and it must be solved quickly or else the organized legal
aid movement must fail to go forward and gradually cease to be an important fac-
tor in the equalization of the administration of justice.

1 Cf. 22 N. Y. L. A. R. 6, 17 ; 34 Ibid. 6.

2 This is considered further in Chapter XXIV, Legal Aid and the Bar. See post, page 226.

THEIR PRESENT POSITION 19^

Legal aid work has not yet passed out of the stage of localized organization. We have

already seen that the societies were started in the various cities by local groups act-

_ ing independently. If there was no such group, no society was started,

** and if the group failed or dispersed, the society went with it. There

never has been, as there is not now, any strong central agency in a

position of leadership. There is no centralized responsibility or authority. The legal

aid movement has not yet become a coordinated national undertaking.

There is a steadily growing realization among the local organizations of acommunity
of purpose and of the need for closer cooperation. The feeling of comradeship became
strong enough in 1911 to bring about a successful conference of delegates from the
various societies then in existence. The discussion turned mainly on the advisability
of some union, and while there was a feeling that such steps ought to be taken and
excellent arguments for such a plan were advanced, there was also a certain holding
back and a reluctance to be committed to anything definite. This was perhaps en-
tirely natural at such a first gathering. The upshot of the meeting was to secure a
committee to draft a form of alliance.

A second conference was held in 1912, at which the National Alliance of Legal Aid
Societies was formed and a constitution and by-laws were adopted. From the point
of view of organization this is as far as the development has proceeded. The Central
Committee of the National Alliance has called two conventions, which have been pro-
ductive of fruitful discussions and of a valuable interchange of opinions, but it has
done nothing else. The weakness of the Alliance and the strength of the local tradi-
tion are well attested by the fact that even the conventions are in the main planned
for and controlled by a local committee of the society which is the host, and the ex-
penses of the convention are defrayed by that local organization. Thus if the local
society delays the printing of the record of the proceedings (and these records un-
questionably constitute the most valuable information about legal aid work in exist-
ence), the National Alliance can do nothing but wait, and if the funds of the local
society permit the printing of only a limited number of copies, the National Alliance
can do nothing but submit.

As it exists to-day, the National Alliance is like a federal government without
power of taxation. It is impotent. There is a power to assess the local organizations,
but it is not in use, partly because the local societies desire that the central body should
not be strong and partly because they are poor. For all practical purposes the Na-
tional Alliance does not exist except for a few days once in two years when a con-
vention is in session.

The situation is unfortunate. It has retarded development and it may cause serious
trouble. There is an imperative demand for such elementary things as standardized
records of work, conventionalized classifications of the nature, source, and disposition

198 LEGAL AID ORGANIZATIONS

of cases, and uniformity of financial accounting. It ought to be possible for one society
to compare its work with that of any other in order to benefit from the lessons which
accurate comparisons teach, but as there are as many systems as there are organiza-
tions, even the simplest comparison is a puzzle. There is great need for a central clear-
ing house to provide for the proper reference of cases.1 As commerce and business have
overflowed all artificial state boundary lines, so legal aid work often runs beyond the
confines of the city or state. With forty-one organizations in existence a substantial
beginning could be made. A Boston creditor could collect from his debtor in San
Francisco, and a wife deserted in Chicago could trace and locate her husband in New
Orleans. Such a central agency could establish relationships with attorneys in smaller
towns who were willing to do their share of legal aid work and thus provide a com-
plete network, stretching over the entire country, so that no claims would have to
be abandoned because of the absence of parties from the jurisdiction. The essential of
any such plan is close supervision, which ensures that prompt attention be given to
all matters so referred. One local organization cannot exercise such a control over
another organization ; it can be done only by a central body. As it is to-day, legal aid
societies often refer cases to private attorneys rather than the legal aid societies in
other cities because they have no guarantee that the latter will render prompt and
accurate service.

There is no definite head, no leadership in the legal aid movement. Because of this
no intelligent propaganda or missionary work is carried on. There is no attempt to
bring legal aid work to the attention of bar associations or other groups in cities where
there is an obvious need for such work. What happens at the present time is that
persons desirous of having a legal aid society hear of the work in some one city, and
so, when they establish their organization, copy the only plan which they know of with
all its virtues and vices, or they may write to a number of larger societies and receive
in reply such inconsistent information and such diverse models to follow that in de-
spair they erect their own structure as best they know how. This is a slipshod way
of conducting an important undertaking. A central bureau, with a field secretary,
could place accurate information at the disposal of any organizers, could assist in
installing a proper system calculated to take care of the work efficiently and economi-
cally, and could help new organizations through their first hard years. Intelligent
leadership will be increasingly necessary as other remedial agencies develop and ex-
pand. It will be a distinct loss if the public defenders are allowed to grow apart from
the legal aid organizations. Thus far no attempt has been made to bring the two
together or to show that the two belong together and have much to learn from each
other.

There are some enemies of the legal aid movement which can be attacked only
through a powerful central organization. Abuse of the term "legal aid" may become
a serious menace to a natural future development. Because of the universally high

1 Report of Proceedings of the First Conference of Legal Aid Societies, page 34.

THEIR PRESENT POSITION 199

standard of the societies thus far the term "legal aid" has earned a connotation of
fair play and square dealing. It has a good will that can easily be capitalized by un-
scrupulous attorneys. This is not a chimerical fear, for there are instances where it
has already happened. In England the organization most nearly like our legal aid
society is called "Poor Man's Lawyers' Association." There are a number of such or-
ganizations, but until 1913 they formed no alliance and had no concerted strength.
As a result, there grew up all over England "Legal Aid Societies," which were sim-
ply catch names to draw business, serving the same purpose as the " runner," so that
the term "legal aid society" became as much a term of reproach in England as it is
above reproach in the United States. Such societies have been publicly denounced
as wolves in sheep's clothing.1

Attempts to trade on the name have been made in New York, but were repressed
by the vigorous action of the local society. In cities without societies the process can
be and has been accomplished with impunity. There are to-day three legal aid socie-
ties in widely different parts of the country which are struggling under a heavy handi-
cap because, before their existence, the name was used for fraudulent purposes. A
wide-awake central body could have stopped such practices by promptly detecting
them and enlisting the cooperation of the local bar association for their repression.
Legal aid organizations may have no funds in their treasuries, but in their name
they have an invaluable asset. They must guard it, for the chief strength of legal
aid organizations in reaching the people who need help is the guarantee which the
name carries.

There are further great possibilities for concerted action. There are national prob-
lems on which the experience of the legal aid organizations ought to be formulated.
In many aspects of the divorce problem they could shed much light from the cases
which come to them. If a study of non-payment of wages were to be made, their files
together with the records of labor bureaus would furnish the best evidence. More
important, they should play a direct part in the nation-wide movement for a bet-
terment of the administration of justice by reorganization of courts and simplifi-
cation of procedure. They should cooperate with such definite work as that of the
American Judicature Society. In these subjects they are vitally concerned. They have
the background from which to point out how the existing denial of justice to the
poor may be lessened. They have a responsibility, second to none, in the planning
and carrying through of our Americanization program. They possess the latent pos-
sibilities of becoming a mighty factor in the betterment of American justice.

None of these things are being done; none of these possibilities are being real-
ized.2 There is nowhere any responsibility or authority to undertake these larger
projects. An adequate central organization is imperatively needed to make legal aid
work a more concerted, aggressive, vital, and intelligent force.

1 See an article in Truth for January 1, 1913(No. 1880), page 12; also 47 Law Journal (1912), 48.

2 See also post, page 217.

Chapter XXI
LEGAL AID AND THE LAW

It is precisely because the force of things tends always to destroy
equality, that the force of legislation ought always to tend to main-
tain it. Rousseau.1

§1

THE legal aid organizations throughout the country have steadily taken a deep
interest in legislation, they have made valuable contributions in many strug-
gles to write wise laws on the statute books, and they have themselves secured the
enactment of several excellent pieces of legislation. The legal aid socie-
€^. _ . ties are not legislative bureaus, they have no political affiliations, and
' s they are not vehicles for the promotion of any pet cause or panacea.

Their primary work is confined to giving through their staffs of attor-
neys the legal advice and assistance in individual cases which poor persons need. It
early became apparent, however, that if they were to be effective in their fight against
injustice, they must from time to time take a part in the formulation of remedial le-
gislation. They saw cases of injustice which the law was powerless to redress because
of the inadequacy of certain provisions or the lack of proper laws framed to meet the
changed conditions. In 1903 the New York Legal Aid Society amended the purpose
clause of its constitution so that it read :

"The purpose of this Society shall be to render legal aid and assistance, gratu-
itously if necessary, to all who may appear worthy thereof and who are unable
to procure assistance elsewhere, and to promote measures for their protection."

Language of similar import will now be found in the constitutions of the majority
of societies. The Chicago Legal Aid Society states as one of its objects:

"Second. To take cognizance of the workings of existing laws and methods of
procedure, and to suggest improvements."

Whether expressed in words or not, all the organizations, public and private, have
concerned themselves with legislation when their experience indicated a need for
improvement.2

It is worth while to enumerate in summary form the various legislative campaigns
which the societies have undertaken or in which they have played important parts.
Such a statement gives an idea of the sort of measures with which the organizations
have concerned themselves, and serves to indicate the general and intelligent interest
which they have taken in the matter of law-making. Maryland had had since the
eighteenth century a law regulating the support of illegitimate children which lim-
ited the amount of payments that could be enforced against the father to thirty

1 Quoted in Roberts v. Boston, 5 Cush. (1849) 198, 204.
1 14 World's Work (1907), 9091, 9093.

RELATION TO THE LAW 201

dollars a year for seven years. The attorney for the Baltimore Legal Aid Bureau,
together with a member of the local bar, drew a bill, which was passed in 1912, leav-
ing the payments to be fixed in the discretion of the court up to the sum of thirty
dollars a month.1 In Boston, the attorney for the Legal Aid Society cooperated with
a committee of judges which drafted the present Massachusetts law on illegitimacy,
enacted in 1913. In 1916 the Society secured the passage of a law limiting the rate
of interest on small loans to three per cent per month, and a second law safeguarding
the assignment of wages.2 The Legal Aid Bureau of Buffalo pointed out the harsh-
ness of the law governing the conditional sales of furniture on instalment payments
and the inefficacy of civil proceedings to secure support for abandoned children, and
recommended legislation.

The Chicago Legal Aid Society has entered largely mto legislative activity. It has
carried on the sterling work of the Protective Agency in the matter of providing
adequate legal safeguards for the protection of children from abuse. A law secured
by the Protective Agency in 1905 was declared unconstitutional, but was redrafted
and reenacted through the efforts of the Society in 1907.3 In the same year work
was begun on legislation to regulate interest charges on loans secured by pledges,4
which was continued on through the next year,5 and a bill was presented and urged
before the state legislature in 1909 which failed to pass.6 A decision holding uncon-
stitutional the act regulating wage assignments caused the Society to take up that
fight and to frame a law which would stand attack.7 Work on these and other mat-
ters was carried on during 1910, although the legislature was not in session.8 When
the legislature met in 1911 the bills received favorable committee reports, were
passed by one house, and killed by the other.9 In 1916, following sensational dis-
closures by the press as to the rates of interest charged poor persons on small loans,
a group of organizations, including the Legal Aid Society, took up a campaign which
led to the enactment in 1917 of a proper act regulating the business of small loans.
The backbone of the fight was provided by a document, proving beyond question
the extortions which the laxity of the law permitted, published by the City Depart-
ment of Public Welfare.10 This remarkable document was irrefutable because it was
based entirely on the records of actual cases, of which the Legal Aid Society fur-
nished nearly one-half.

As a part of the organization of the Cleveland Legal Aid Society there has always
existed a most energetic legislative committee. Its greatest triumph is the Cleveland
Small Claims Court. It not only sponsored this court, but conducted an investigation
of the evils of the justice of the peace system that was published and led to the suc-
cessful campaign, in which all the better interests in the city took part, for a mod-

1 Report of Proceedings of the Second Conference of Legal Aid Societies, page 38.

2 16 Boston L. A. 11. 10. 3 2 Chicago L. A. R. 12; 3 Ibid. 12, 16. * 3 Ibid. IT. 6 4 Ibid. 8.
6 6 Ibid. 8. ' 5 Ibid. 9. 8 6 Ibid. 7. 9 7 Ibid. 8.

10 Bulletin of the Departmentof Public Welfare, City of Chicago, vol. i, No. 4 (November, 1916), "Loan Shark Num-
ber."

202 LEGAL AID ORGANIZATIONS

em municipal court.1 The activities of the Legislative Committee have covered wage
assignments, attachments of wages, desertion, and small loans,2 delays in small causes,
a summer criminal session to secure prompt hearings for prisoners held on serious
charges, public defenders,3 legislation to provide the court trustee plan,4 service of
process by mail,5 and fairer provisions for an equity of redemption in chattel mort-
gages.6 Not all of these matters were brought to the desired conclusion, but the Soci-
ety has to its credit, in addition to its municipal court bill, five important accom-
plishments in the loan shark law, a provision for three days1 notice before the attach-
ment of a married man's wages, registered mail service, the reduction of court costs,
and an amendment making the desertion of a pregnant woman an extraditable crime.7

The Cincinnati Legal Aid Society, being in the same state with Cleveland, has
cooperated with that organization in successfully urging the loan shark legislation,8
and in advocating the court trustee plan which thus far has met great opposition.9
The public bureau in Dallas, before politics cut its life short, had pointed out serious
flaws in the Texas laws and had advocated legislation of a modern type dealing with
desertion and non-support (analogous to the Uniform Desertion Act), the require-
ment of some intervening period between the issuance of a marriage license and the
performance of the ceremony, provision against fraudulent divorce, stricter usury laws,
an exemption of a fixed proportion of wages from assignments, and safeguards against
conditional sale abuses in instalment furniture contracts.10 The first attorney for the
Hartford Legal Aid Bureau was elected to the legislature, from which vantage-point
he was able to urge many interesting measures. His work in connection with the
Hartford Home Rule bill made possible the referendum vote by which the Hartford
municipal Legal Aid Bureau was established. He drafted the so-called public defender
law.11 Other measures, which were not understood and so failed of passage, related to
the establishment of a small claims court, the establishment of county legal aid soci-
eties with attorneys to be appointed by the governor, and in forma pauperis pro-
ceedings with assignment of counsel.12

The public bureau in Kansas City signalized its appearance as a new factor in the
administration of justice by making an elaborate investigation of the abuses of the
justice of the peace system. This led to an amendment of the Missouri law on gar-
nishment of wages which had become a national scandal.13 Forty railroads enter Kansas
City, and under the law it was permissible to attach the wages of any employee of

I American Judicature Society, Bulletin VIII, page 5; Justice for the Poor (First Report of the Cleveland Legal Aid
Society), page 2; 4 Cleveland L. A. R. 19; 6 Ibid. 7, 16; 9 Ibid. 13.

* 2 Ibid. 11. 3 3 Ibid. 10, 15. 4 7 Ibid. 12, 16. " 7 Ibid. 16. 6 8 Ibid. 12.

7 See pamphlet published by the Cleveland Legal Aid Society entitled " All Men are Equal before the Law."

8 7 Cincinnati L. A. R. 5, and fly-leaf on cover. 9 6 Ibid. 9.

10 Second Annual Report of the Dallas Board of Public Welfare, pages 9, 10.

II This has already been commented on ante, page 117.

12 These matters are not set out in the Hartford reports. They were introduced in the 1915 session of the legislature
and are House Bills Numbers 443. 442, and 480 respectively.

13 1 Kansas City L. A. R. 12 et seq.

RELATION TO THE LAW 203

these roads, wherever he might work, by service of process on the Kansas City office
of the road. One employee was obliged to travel nine hundred miles to defend such
a suit and prove that he owed no debt. As it was possible to bring suits in Missouri
against employees in any part of the country, which they were obliged to default
because they could not travel so far to put in an appearance, a wholesale collection
business, permeated with fraud, sprang up. This traffic became a specialty of certain
justices'1 courts, which became known as "Jack Rabbit" courts. As a result of the
investigation, the abuse was stopped.

Only a few of the measures advocated by the New York Legal Aid Society during
its long period of activity1 can be mentioned. It has taken part in urging the kinds
of legislation that have already been noted in connection with other organizations,
such as the loan shark laws2 and more stringent provisions to enforce payment of
wages,3 and in addition it has fought to better the condition of seamen. It sent one
of its members to Washington to appear before the Congressional Committee on the
Merchant Marine, and secured laws to prevent shanghaiing and peonage among sail-
ors.4 It has further argued for the extension of the United States Shipping Commis-
sioner's jurisdiction, against allotments of pay to persons other than dependents,
and against shipping fees which induced a form of slavery.5

In Pittsburgh the Society has studied unsatisfactory laws which work injustice,
has noted how like defects have been cured elsewhere, and has publicly advocated
legislation to reduce costs, to prevent fraud through the conducting of a business
under an assumed name, to secure more stringent supervision of industrial weekly-
payment insurance policies, and to empower the Labor Board to collect wage claims.6
Of the work done in Philadelphia, the most important was the Society's inaugura-
tion of a campaign for a municipal court, which was persisted in for years and which
finally, in cooperation with other agencies, gave Philadelphia its present admirable
court.7 It made an investigation of the situation on the waterfront which disclosed
horrible conditions in the treatment of sailors.8 It arranged for a hearing before the
Congressional Committee on the Merchant Marine and, in cooperation with the New
York Society, submitted evidence which brought about protective legislation. It
also succeeded in having the powers of the insurance commissioner somewhat in-
creased in supervising industrial insurance policies.9 At the conferences of legal aid
societies, matters of legislation and suggestions for improvements are the most com-
mon topics of discussion.10 As yet, no combined attempt to work out national legis-
lation in which all organizations might cooperate has been made.

It is apparent that the legal aid organizations have taken up the burden of try-

1 29 N. Y. L. A. R. 10; 40 Ibid. 20; 41 Ibid. 10.

2 30 Ibid. 37. 3 32 Ibid. 35. i 31 Ibid. 10. s 29 Ibid. 36. 6 8 Pittsburgh L. A. R. 14-21; also 7 Ibid. 27.
7 Report of Proceedings of the Second Conference of Legal Aid Societies, page 24.

6 3 Philadelphia L. A. R. 9. 9 8 Ibid. 7.

10 See Report of Proceedings of the First Conference of Legal Aid Societies, pages 15, 21, 23-26; Ibid., Second Confer-
ence, pages 24, 28, 38; Ibid., Third Conference, page 26; Ibid., Fourth Conference, pages 132, 140.

204 LEGAL AID ORGANIZATIONS

ing, through remedial legislation, to keep the law equal in the face of changes and
new plans and devices which tend to destroy equality. It is clear that the societies
come into contact with legal abuses which would not appear in the ordinary private
law office, and which the community in general would not be in a position to detect
or understand. Because of the position of the legal aid society and because it has
accepted the responsibility of remedying defects as rapidly as it is able, it has un-
questionably served to secure the enactment of wise measures which, without it, never
would have become law. Two entirely different illustrations will show concretely why
this is and how it works out.

For years there has been in California a curious rule about costs on appeal. A
plaintiff might bring his action in the lower courts and obtain judgment. The de-
fendant, thereupon, could claim an appeal by paying one dollar and twenty-five
cents. This not only forced the plaintiff to try his case all over again and subjected
the proceedings to delay, but it permitted the defendant to take no further action
at all and to have the case pend indefinitely. The only recourse open to the plaintiff
was to enter the defendant's appeal in the Superior Court himself, pay six dollars
for such docketing, and also pay two dollars for having the case marked on the cal-
endar. Unquestionably thousands of attorneys for plaintiffs in as many cases, when
confronted with this situation, have felt the absurdity as well as the injustice of put-
ting a premium on appeals and of compelling the plaintiff to pay the costs of an ap-
peal which he did not take and did not want. Undoubtedly many of them felt that it
ought to be set right, and perhaps a few jotted down notes to draft a bill in a leisure
moment. Yet they must all have gone on to their other business and forgotten it, for
no attempt to change the law was ever made.

The Los Angeles Public Defender had not been at his civil work for six months
before he saw the defect in the law. He reported on it officially,1 drew a bill, submit-
ted it to the legislature, and in 1915 the procedural rule was amended.2 The Public De-
fender not only was in a position to discover this little kink in the law, but also he
felt that the responsibility rested on him, that it was his business to straighten it
out, and he promptly proceeded to do so.

There are innumerable places in the law where just such betterments will make
the course of justice run more smoothly. They are not glaring defects about which
a public hue and cry can be aroused; reformers will never change them, for reformers
will never know of them. The inevitable result of changing conditions and of a body
of law which is gradually built up case by case is to leave some loose ends which
cause needless friction and injustice. Many groups in the country are watchful for
just such things, and they possess the coherence and resources to take care of them-
selves. The poor are not in a position to understand or to act. For that vast number
the legal aid society must act as champion, for in the course of its daily work it finds

1 Place of Vie Public Defender in the Administration of Justice, page 24.

2 Acts 0/1915, California Code, § 981.

RELATION TO THE LAW 205

these omissions and from the wealth of its experience it can easily determine just
what remedial legislation is necessary.

The second illustration relates to a defect in substantive rather than procedural
law, and shows an entirely different function which the legal aid society performs.
The world has always had its usurers, but the modern loan shark, specializing in
small loans and doing business among the very poor, is a by-product of our great
industrial cities with their wage-earning population. In Massachusetts until 1916
the law permitted a lender to loan ten dollars and to charge interest on that loan at
the rate of one hundred and eighty per cent per year. It also permitted an instalment
house to sell a diamond ring and to take as security an assignment of wages which
bound all future wages earned for a period of two years and exempted not a penny.
When the assignment was filed, the employer was legally bound to turn all the em-
ployee's pay over to the creditor. The abuses were so gross that public attention was
directed to them and the question became of immediate public concern. A wave of
reform secured a law in 1913 concerning small loans which promptly proved not to
have changed interest rates at all. Nothing was accomplished as to wage assignments
in general. Year after year earnest attempts were made, but they all failed because
the Committee on Legal Affairs was unwilling to recommend legislation until the
proponents could prove their case.

The poor do not appear at legislative hearings to present evidence in their own be-
half as to how they are exploited. Those who had appeared in their behalf were certain
of their case, but they were unable to prove it. In 1916 the Legal Aid Society, co-
operating with the Law Department of the City of Boston, the Russell Sage Founda-
tion, and one member of the House of Representatives, entered the fight. The Society,
because of its position, was able to make two invaluable contributions. First, from
its files it was possible to produce records of actual cases whose authenticity could not
be challenged, and which proved beyond question that the alleged abuses were being
perpetrated daily. Second, the Society was able to serve as a centre around which all
forces could unite and to undertake the leadership in a public campaign, for its atti-
tude was known to be impartial, it had no selfish interests to serve, and the sincerity of
its motives and the truth of its statements could not be impugned. After a five months'
fight against a naturally bitter opposition both bills — one fixing the maximum rate
of interest on small loans at three per cent per month and one safeguarding wage
assignments by provisions for exemptions and the wife's consent — were made law.1

This achievement finds its counterpart in the work of other societies in other cities.
It reveals a militant group of organizations. The significance of such work is that
it denotes the presence of an organization that can speak for an estate in the com-
munity which by reason of its own limitations is inarticulate. This is an important
contribution toward preserving the fairness of the substantive law which is the requi-
site foundation for an equal administration of justice.

1 Massachusetts Acts o/1916, chaps. 208 and 224.

206 LEGAL AID ORGANIZATIONS

§ 2
Under our common law system the decision of a court of last resort not only adju-
dicates the rights of the particular parties to the action, but also fixes the law for
all future similar cases. In the generality of its application a case

° ' decision is as important as an act of legislature. It follows, therefore,

that a proper and equitable decision may have as much effect in safe-
guarding the rights of the poor as a remedial statute. Precisely the same reasons
which lead legal aid organizations into legislative work lead them to seek final adju-
dications in proper cases.

Thus far the societies have by no means taken as large a part in appellate work
as they have in remedial legislation. They have been debarred by the expenses en-
tailed in appeals for transcripts, records, briefs, and court fees. It is financially im-
possible for most organizations to undertake such disbursements. They have reasoned,
and with much wisdom, that so long as the funds at their disposal are small, it is
inadvisable to spend on one unusual case a sum which would enable them to extend
their assistance to one hundred applicants with ordinary cases. As the limit of an
organization's resources is an absolute limit, the societies have been, and still are,
unable to secure to their clients as complete legal protection as wealthier litigants
may avail themselves of. This is a clear limitation to the service which thev can afford.

Because of our case system, however, it is imperative that somehow certain types
of cases should be finally determined. It is one thing not to appeal from the ruling
of a trial judge on a point of evidence which, though erroneous and prejudicial,
cannot affect the settled rule of law and operates only to defeat the individual in the
particular case. This is an injustice, and it is regrettable that such instances occur,
but so long as the legal aid societies are poorly supported, instances of this sort are
inevitable. It is a far different thing that a ruling which makes new law and affects
many persons should be allowed to stand unquestioned if it is unfair or is deemed
erroneous, such for example as a decision by an inferior court or tribunal that injured
longshoremen are not within the provisions of the workmen's compensation act. In
cases wherein new important points of law and matters of general legal or social in-
terests are involved, it is essential that legal aid organizations should be able to
carry the issue through to the highest court for its decision. Every society should
have a "fighting fund" for this purpose.

There is an opportunity for the legal aid organizations to supply a much needed
element, which has for some time been entirely lacking, in the steady development
of our common law. The common law is the people's law; it has had its being in their
life; it has been able to develop in a comprehensive way through the controversies
of all classes of citizens, high and low, in all sorts of cases, big and little. This sturdy,
all-round development is not so clear to-day. The poor cannot afford appeals, the
small case does not warrant the incurring of large expense, and the large private

RELATION TO THE LAW 207

offices, engaging in general practice and doing legal aid work as a part of that prac-
tice, no longer exist. A glance at the reports will show that the only cases of the
poor which receive appellate attention are personal injury suits where the stakes
are large enough to induce attorneys to assume the expense themselves. The highest
courts are being largely confined to expositions of the law of negligence, of property
matters such as wills and trusts, of corporation, banking, and business law, of taxa-
tion, and of procedure. In the main these are the only cases brought to them. Two
generations ago Chief Justice Shaw of Massachusetts was called upon to decide
whether a calf was subject to attachment,1 and when the care with which he exam-
ined the issue evoked some merriment at the bar, he said with much emotion: "Gen-
tlemen, this may seem to you a trifling case, but it is a very important question to
a great many poor families."2 One may search far in the reports of to-day without
finding any comparable instance. It has in large measure been this inability of the
mass of the people to secure a development of the common law suited to their needs
that has driven them to act through, their representatives and resulted in our endless
legislation concerning both substantive and procedural law.

It has been said with much truth that the offices of legal aid organizations are
the only common law offices that remain in existence in the large cities.3 There the
common law may be seen working itself out in its application to the people in their
daily lives. Innumerable questions arise which have never been decided and which
ought to be decided.4 As an illustration, it is not clear under Massachusetts law
whether the fictitious lease is a lawful method of ejecting a tenant at will without
the two weeks' notice required by statute.5 It is used every year in thousands of cases.
It is not to the interest of landlords to dispute it, the poor who are ejected by it
are unable to question it, and as a result it continues in existence. Slightly different
in operation but tending to the same result is the too common practice in compen-
sation cases where insurance companies take appeals and the employee is unable to
file a brief and present his side of the case. One-sided argument cannot secure as fair
a construction of the statute as a decision rendered after full hearing of both sides.

Just as the legal aid organizations are necessary to secure to the individual poor
person his day in court, so they are necessary to secure his hearing on appeal. But
the latter is more than a question of individual justice; on it may depend the right
to protection and redress of countless other persons similarly situated. It is not of
chief importance whether the legal aid organizations win or lose their appeals; the
prime consideration is that our common law system should have a fair chance to
work itself out by having points needing determination brought to the supreme
courts, and by having those issues fairly argued, not from one, but from both points
of view.

1 Carruth v. Grassie, 11 Gray, 211. 2 Chase : Lemuel Stow (1918), page 280.

3 Rowe : Joseph H. Choate and Right Training for the Bar, 24 Case and Comment (1917), 264, 273, 275.

1 30 N. Y. L. A. R. 48 ; cf. Parry : The Law and the Poor, page 175. B Cf. page 14, ante.

208 LEGAL AID ORGANIZATIONS

What little work of this sort the legal aid societies have been able to do serves to
indicate very clearly what a valuable work they might, if permitted, perform for the
law. At the time of the loan shark campaign in New York a question arose as to the
legality of the lenders' charging a ten dollar fee as "attorney's services" in drawing
the papers taken as security for the loan. By such a device all the laws limiting
interest rates could be set at naught. The plan is a very common one, and it must
have been successfully employed in New York in thousands of cases. No borrower
had ever been in a position to undertake the long fight necessary to test this sub-
terfuge and to secure a final adjudication. In the case of London Realty Company
v. Riorden the New York Legal Aid Society undertook to defend a suit based on
such a transaction on the ground that the loan was in violation of law. The Muni-
cipal Court gave judgment for the plaintiff. The Society appealed and the Appel-
late term of the Supreme Court affirmed the judgment. The Society took a further
appeal to the Appellate Division, where the court reversed the affirmed judgment,
saying that the attorney's fee was "a device or pretext to evade the law." This time
the lender appealed and the Society followed the case to the Court of Appeals, where
it was finally ruled that the law had been violated and the judgment was set aside.1
It is interesting to note that in the companion field of wage assignments the law
concerning the requirement of notice to the employer, although that question must
have been a decisive factor in innumerable cases, was never determined until the
Russell Sage Foundation engaged counsel to take the necessary appeals.

The maritime law permits sailors to be fined for disobedience because strict disci-
pline on shipboard is essential. In order that fines might not degenerate into abuse,
the law required the master to make an entry in the log book concurrently with the
imposition of the fine. This provision was not complied with, and it became an easy
matter for unscrupulous captains to discharge their crews with little or no pay on
the allegation that there were deductions for fines. No sailor was in a position to
dispute the illegality of this conduct. When the situation came to the attention of
the Seaman's Branch of the New York Legal Aid Society, a case was brought before
the federal court where it was held that if entries were not properly made, there could
be no deductions for fines.2 Such a decision automatically carries the intended pro-
tection of the law to all seamen on American vessels.

A less important instance, which has a good deal of humor in it, is found in the
practice of the Philadelphia Legal Aid Society. In its struggle against the loan shark
the Society, failing at first to find any point of attack, set up as a desperate defence
to a suit in the Court of Common Pleas the contention that an office where usurious
rates of interest were charged was a disorderly house. By some weird reasoning this
was sustained. It sufficed to keep the lenders at bay until the Society worked out the
more tenable theory of enjoining all suits brought on usurious notes.3

1 36 N. V. L. A. R. 26 ; 37 Ibid. 30 ; 38 Ibid. 27. 2 The St. Paul, 133 Federal, 1002 ; 30 N. Y. L. A. R. 89.

3 8 Philadelphia L. A. R. 6.

RELATION TO THE LAW 209

In Hartford certain employers who had less than five employees contended that
the compensation act did not apply to them. The Legal Aid Committee took a test
case to the Supreme Court, where the general applicability of the act was upheld.1
In Boston the Legal Aid Society has taken up for final determination cases involv-
ing the power of the Industrial Accident Board to control the fees charged by physi-
cians to injured employees,2 the construction of a statute requiring insurance com-
panies to pay compensation to employees who had received an award from the Board,
notwithstanding an appeal taken to the Supreme Court by the insurance company,3
and the right of a seaman to libel a ship for his wages when the agreement under
which the master had shipped his crew was in accordance with the custom of shares
with a stipulated daily wage in addition.4

The most important ruling obtained by a legal aid society is the California deci-
sion, already referred to in connection with the question of costs as a denial of jus-
tice, in which the court held that in order to prevent a frustration of justice, courts
of record have an inherent power to permit a suit without prepayment of costs when
it appears that the enforcement of costs will preclude the party from all possible
relief.0 In this matter the attorney for the San Francisco Legal Aid Society appeared
as amicus curiae. This decision at once opens the doors of the courts in proper cases
to persons throughout the state who have hitherto been barred from seeking redress
because of their inability to defray the required court costs and fees. Should a recog-
nition of the simple truths on which the decision rests lead to its adoption in other
jurisdictions, this case would mark an advance, second only to the original in forma
pauperis statute of Henry VII, in the progress toward a more free and equal justice.

1 2 Hartford L. A. R. 4. 2 Holland v. Zeuner, 228 Mass. 142.

3 Insurance Co. v. Peloquin, 225 Mass. 30; 16 Boston L. A. R. 16.

* Holmes v. Schooner Mettacomet, 230 Fed. 308 ; 233 Ibid. 261.

0 Martin v. Superior Court for Alameda County, 64 California Decisions (October, 1917), 422.

Chapter XXII
LEGAL AID AND THE COMMUNITY

Perhaps you may discover many things yet wanting in the Law ; Mischiefs
in the Execution and Application of the Laws, which ought to be better
provided against; Mischiefs annoying of Mankind, against which no Laws
are yet provided. The Reformation of the Law, and more Law for the Re-
formation of the World is what is mightily called for. From the First Amer-
ican Address to Lawyers.1

REMEDIAL legislation and the final determination of legal issues of general
application affect the entire community, and work in these two directions is
work for the community. The service which legal aid organizations render to the
. community is, however, not confined to these two forms of activity,
~ . " but extends into many fields and its effects reach far and wide. As all
their work is legal in nature and pertains to law, the contributions
which the societies make to the common welfare are along legal lines. Because of their
peculiarly close contact with life no general legal wrong or fraud can long be per-
petrated on the poor before some case, revealing the situation, comes to their office
and provides a point of attack. The organizations detect fraudulent schemes, sup-
press abuses, study conditions, educate persons in matters of law which they ought to
know, and are the first to act when some new need for legal assistance appears. So far
as these various activities can be reduced to one formula, it is that of law enforce-
ment rather than of law making.

The loan shark has been able to exist in spite of laws either by evading or ignor-
ing them. Important as remedial legislation is in curbing his power or in ousting him,
it is equally important to fight him by enforcing the laws against him, and mak-
ing it impossible for him to practise usury by recovering back from him all excess
payments and preventing borrowers from overpaying on their loans. During the last
three years the Chicago Legal Aid Society has acted in 1266 cases, permitting the
payment of the legal rates, but cutting off all excess sums demanded by the lend-
ers, which aggregated SI 6,884. 88.2 Everywhere the legal aid organizations have been
the most determined enemy of the loan sharks, driving them to cover by exposure
and thwarting their carefully concealed plans for evading the law.3 Thus, in Massachu-
setts, after the new law regulating interest rates was passed, the lenders immediately
became incorporated and required all borrowers to agree to buy shares of their stock

1 By Cotton Mather in 1710, quoted in Warren : History of the American Bar, page ix.

2 Eubank : Loan Sharks and Loan Shark Legislation in Illinois, 7 Journal of Criminal Law, No. 1 (May, 1917),
reprinted by the Russell Sage Foundation. See page 11 of the reprint.

3 The reports of the legal aid societies are full of statements as to this work. See particularly 8 N. Y. Legal Aid Rev.
No. 1, p. 1 ; 10 Ibid. No. 1, p. 1 ; 6 Pittsburgh L. A. R. 11 ; also Bulletin of the National Federation of Remedial Loan
Associations for November, 1916, page 7 ; Chicago Legal Neios for March 28, 1918 (whole No. 3298), pages 277, 280.

RELATION TO THE COMMUNITY 211

on the pretext that it was to afford security for the loan. This in effect served to break
down the law and to restore the former high rates. Four test cases were brought by
the Legal Aid Society, with the result that the lenders' licenses were suspended or
revoked, and the subterfuge was abandoned.1 In thus protecting and enforcing the
law in all its vigor the Society was not merely aiding four individual borrowers : it
was preventing the exploitation of the one hundred and fifty thousand borrowers of
small loans in Massachusetts, and promoting the community welfare.

Attempts are steadily being made to perpetrate hoaxes or fraudulent schemes on
the less intelligent members of the community. Where some element of gambling or
of a lottery is included, the lure is strong and the trick works. In 1914 a most ingen-
ious "club plan" for the sale of furniture, with the usual speculative accompani-
ments, was promoted in New York. Thousands of poor persons joined and paid in,
in sums of twenty-five cents a week, the vast amount of one hundred and sixty thou-
sand dollars. The Legal Aid Society secured warrants to which the defendants pleaded
guilty, and then undertook in behalf of thirteen thousand victims to liquidate the
business so that the purchasers might be saved as much as possible.2 Following this
experience the Society published a statement of schemes to be avoided by the poor.3
The love of chance-taking is not the only human frailty that is capitalized. Vanity
does just as well, and the concern which offers to make a "movie" star of any appli-
cant finds willing listeners who cheerfully pay for a course of instruction.4 The legal
aid societies in the various cities are constantly on the watch for these fraudulent under-
takings and combat them to the best of their ability.5

Other illustrations abound. The mere mention of some of them suffices to show the
value of the service which the societies render. The Legal Aid Bureau of the Educa-
tional Alliance and the Legal Aid Society in New York cooperated to stop the illegal
traffic in divorces which certain rabbis were carrying on among the Jewish immigrant
population.6 In Philadelphia it was discovered that a large manufacturing plant was
in the habit of paying its employees, many of whom were minors, by check. These
checks were cashed at the nearest place, which was a saloon. On the Legal Aid Soci-
ety's representation the company discontinued its practice and paid in cash.7 Special
protective work in behalf of immigrants has been undertaken ; the New York Legal
Aid Society opened and maintained a special immigration branch until lack of funds
forced it to be given up.8 Conditions from which seamen have suffered, such as shang-
haiing, crimping, and the exaction of fees for getting men jobs, have been steadily

1 16 Boston L. A. R. 10-14; Report of the Massachusetts Supervisor of Loan Agencies for January 1, 1917 (Public Doc-
ument No. 96 of 1917), pages 16-21.

2 39 N. Y. L. A. R. 19 ; Report of Proceedings of the Fourth Conference of Legal Aid Societies, page 133.

3 89 N. Y. L. A. R. 24. * 40 Ibid. 36.

6 3 Buffalo L. A. R. 6; 6 Pittsburgh L. A. R. 13; 7 Ibid. 17-26 ; 16 N. Y. L. A. R. 6; 21 Ibid. 8; 22 P>id. 8; 4 Philadel-
phia L. A. R. 4, 5.

6 11 Educational Alliance Report. 56; 22 N. Y. L. A. R. 10. * 8 Philadelphia L. A. R. 10.

8 36 N. Y. L. A. R. 18; 37 Ibid. 10, 21 ; 38 Ibid. 12.

212 LEGAL AID ORGANIZATIONS

combated.1 In 1907 the New York Society, through the attorney for its Seamen's
Branch, secured evidence on which a boarding-house keeper was convicted of exact-
ing a shipping fee. A notice of this conviction was issued by the United States Com-
missioner of Navigation and publicly posted in all American ports.2 When this one
conviction proved an insufficient deterrent, the Society promptly followed it up with
further convictions.3

The societies have undertaken an amount of educational work in instructing the
poorer classes as to their legal rights and liabilities by the publication of handbooks
setting out the law in simple and easily understandable language. In 1912 the Kan-
sas City Legal Aid Bureau published a forty-four page booklet covering the legal
questions that most commonly arise in the lives of the poor. A first edition of two
thousand copies was immediately exhausted, and a second edition, with translations
into different languages, was printed.4 The organization in Akron, finding that bor-
rowers were paying interest rates greatly in excess of the legal maximum because of
their ignorance of the law, prepared and distributed twelve thousand copies of a leaf-
let dealing with the provisions of law concerning loans, chattel mortgages, assign-
ments, and the like.5 The Bureau in Nashville has in preparation a pamphlet dealing
with the law in general for distribution among the employees of the industrial plants
of the city. The New York Legal Aid Society has published an edition of five thou-
sand copies of a Handbook for Domestic Servants? Its other publication of this sort,
being a compendium of the maritime law and known as The Sailors'' Log, has carried
its name around the world. A first issue of five thousand copies in 1904 proved inade-
quate to meet the demand, a second edition was issued in 1906,7 and a third edition
is now ready for printing. Following the declaration of war by the United States,
several of the societies met an obvious need and produced concise little volumes of
Law for Soldiers, Sailors, and their Dependents.

§ 2
Nothing could indicate more vividly the value to the community of having in its
midst organizations like the legal aid societies than the events which took place after
W w h America's entry into the World War. The complete story cannot be
written yet, for much work which has been done by the legal aid organ-
izations has not yet been reported on and so is unknown, but enough has come to light
to prove the present point of legal aid service to the community, state, and nation.
In Boston a Lawyers' Preparedness Committee was formed to be in readiness for
such legal problems as the vast changes were certain to produce. It was apparent to

1 8 Philadelphia L. A. R. 10; 27 N. Y. L. A. R. 29; 32 Ibid. 42.

2 32 N. Y. L. A. R. 3. 3 S3 Ibid. 31; 35 Ibid. 28; 39 Ibid. 32. * 3 Kansas City L. A. R. 5.

6 First Report of the Charity Organization Society of Akron, report of the Legal Aid Committee, page 14.
6 31 N. Y. L. A. R. 48; 33 Ibid. 13. 7 29 Ibid. 10 ; 31 Ibid. 9.

RELATION TO THE COMMUNITY 213

this Committee that the best machinery for handling a large volume of cases was to
be found in the Legal Aid Society, and therefore the Committee asked the Society
to undertake all legal work for men entering service and their dependents. Through
the press it was publicly announced that all such persons could secure free legal ad-
vice and assistance of any sort from the Society's attorneys.1 As the situation devel-
oped, and as the Home Service Section of the local chapter of the American Red
Cross found itself steadily confronted with legal questions concerning the government
allotments, allowances, compensation, insurance, and cases under the Soldiers'1 and
Sailors'1 Relief Act, it became clear that this mass of work could best be entrusted
to the Legal Aid Society, which was effected through its becoming counsel for the
Home Service Section. In New York there was evidence that a number of disrepu-
table attorneys and others were preying on ignorant persons of draft age by hold-
ing out that thev could secure exemption on payment of a large fee. For their own
ends these shysters encouraged attempts to evade the selective draft law. To combat
this evil it was decided to open a bureau where reliable advice about the law could be
secured at nominal cost. Recognizing the reputation of the Legal Aid Society and
its ability to provide quickly the facilities and machinery for taking many cases,
the Mayors Committee on National Defence and the War Committee of the Bar
Association of the City of New York asked the Society to establish a bureau for
draft information. This was immediately done, and the bureau continued its work
throughout the period of the first draft.2 In Milwaukee, following a statement of the
governor of Wisconsin that men were being charged exorbitant fees in connection
with exemption claims, the Legal Aid Society made arrangements with the Chair-
man of the District Board whereby any matters might be referred to the Society in
the discre cion of the Board.3

In carrying out their assignments, the societies soon saw that the chief difficulty
which they had to combat was ignorance of law. Persons failed to safeguard them-
selves in the manner prescribed by law because they did not know that any legal steps
were necessary. The provisions of the War Risk Insurance Act of October 6, 1917,
and of the Civil Relief Act of March 8, 1918, were very generally unknown. To point
out the difficulties likely to present themselves to the average man and his family
and to urge proper legal action, the Society in Boston published a thirty-eight page
pocket size booklet of Legal Suggestions for Soldiers and Sailors and their Depend-
ents." * Over one hundred and fifty thousand copies were distributed, the requests com-
ing from every state in the Union; twenty-five thousand copies going to the Army
and Navy; thirty thousand to Exemption Boards, thirty-five thousand to the Red
Cross, fifteen thousand to Public Safety Committees; twenty thousand to War Camp
Community Service Committees; and the balance on individual applications. The

1 24 Case and Comment (October, 1917), 400. 2 15 N". Y. Legal Aid Rev. Xo. 4 (October, 1917), 1.

3 1 Milwaukee L. A. R. 4.

4 See Boston Evening Transcript for August 4. 1917 (editorial) ; Ibid, for October 10, 1917 (editorial) ; Boston Adver-
tiser for August 2. 1917.

214 LEGAL AID ORGANIZATIONS

Council of National Defence recommended to the various State Councils that they
publish similar pamphlets. Legal aid organizations in New York, Philadelphia, Louis-
ville, Milwaukee, and Rochester1 printed like pamphlets for their respective juris-
dictions. In other states the idea, which was first conceived and acted on by the legal
aid organizations, has been taken up by other groups and organizations.

The usefulness of the individual societies would have been greatly increased if they
had been united under the control of some one central agency. When the federal gov-
ernment in 1918, through the Council of National Defence, made its comprehensive
plans2 to extend legal aid to every soldier and sailor and his family, the legal aid
organizations should have been the first to offer themselves. By reason of their favor-
able location, their reputation for integrity, and their great experience in caring for
a multitude of cases, they might easily have become in every large city the centre of
legal work for men in service and their dependents. If they had possessed a properly
empowered and alert central office, it would have been heard in the councils at Wash-
ington, and could have placed at the government's disposal a trained and equipped
staff of attorneys with a going organization capable of indefinite expansion. Because
they had failed to erect any central authority, the societies were unable to grasp the
greatest opportunity ever presented them.

§3

There is a new movement in the realm of law which will prove of incalculable benefit

to the community at large and in which the legal aid organizations are likely to play

an important part. It may be called the science of preventive law. As phy-

r sicians have made great strides in preventive medicine, as workers in the

WE I Q/ffl

field of social service are placing their emphasis on the prevention of the
factors which cause poverty and degeneracy,3 so it is becoming recognized that the
legal profession may perform a like service in the law. The science of prevention in
all three branches means the same process of searching for the cause of the wrong
condition and then of ascertaining the cure. As Henry Stockbridge, chairman of the
Section of Legal Education of the American Bar Association, has put it:4 "When
an evil is once recognized, the first remedial step is to ascertain the cause and then
to seek out and apply the antidote or remedy."

Our law has never had forehanded scientific development. This is the weakness
of the common law method of building law case by case. Much legislation has been

1 Rochester L. A. R. for 1917. page 8.

2 Official Bulletin for July 15, 1918, vol. ii. No. 360 ; Supplementary Bulletin No. 84 of the Council of National Defence,
August, 1918.

3 Pear: Social Values in Public and Private Relief, published in The Field of Social Service (1915), pages 208-210.

* 41 Am. Bar Ass'n R. (1916) 659. Cf. Chief Justice Olsen of the Chicago Municipal Court: Efficiency in the Admin-
istration of Criminal Justice, page 29— "We shall try the modern methods of the medical profession— diagnosis and
prevention, when cure is impossible."

RELATION TO THE COMMUNITY 215

necessary, but the statutes too often represent only opinion or snap judgment and
not conclusions drawn from definitely ascertained facts. One reason for the failure
of the law to deal with difficulties before they come to pass instead of always after
they have happened is that the necessary basic material has not been ready at hand.
The experience and data which the hospitals and clinics afforded in medicine, and
which the charity organizations' files and records furnished in social service, were not
to be found in the average law office. Court dockets possess a fund of information
which the modern municipal courts are beginning to analyze and study for the pur-
pose of suggesting betterments. Outside of the courts there has been no organization
which afforded the cases by which the workings of the law could be observed and
tested.

It may be said that American law at the present time stands in need of four great
things. First, the reorganization of courts ; second, the simplification of procedure ;
third, the equalization of the administration of justice so that denial of justice to
the poor may cease ; and fourth, a Bureau of Justice of the sort suggested by Dean
Pound,1 which shall provide the means for the scientific study of the law, for detect-
ing its shortcomings, and for providing the necessary information by which alone
constructive remedial work is made possible. If all the changes advocated by the
leaders of the first three movements could be effected to-day, a new series of prob-
lems would begin to appear to-morrow. This is inevitable because no institution which
is static can be satisfactory when all the life which it attempts to regulate is in con-
stant flux. Only by a Bureau of Justice which can keep abreast of changing condi-
tions and ascertain how and where new laws are needed or old ones call for different
application can the recurrence of the old errors be avoided. It is unquestionably a tre-
mendous task, but it is necessary if the law is to be a living science instead of a set of
archaic dogmas and doctrines. Had there been such a Bureau during the last quarter
of the nineteenth century, it would have known that the structure of our judicial
organization was faulty, that the procedure was over-technical, wasteful, and slow,
and that there was a necessity for supplying attorneys to the poor. With such know-
ledge it might have induced courts and legislatures to act so that the difficulties
would have been met as soon as they arose.

The legal aid organizations cannot be such a Bureau of Justice, but they can be
a part of it, and by their own preventive work in the field of law which affects the
poor they can give an object lesson which will hasten its coming. No more appropri-
ate point of departure could be made, for the need in this particular field is great
and no organizations come closer to the life of the common people of the nation.2
The legal aid organizations are beginning to realize that out of their vast volume of

1 This was suggested by Dean Pound in his address before the Conference of Delegates of State and Local Bar As-
sociations on September 3, 1917. The address has not been printed, but this point is mentioned in 24 Case and Com-
ment, 422, 423.

2 Cf. statement of Graham Taylor in his address to legal aid society delegates, Report of Proceedings of the Fourth
Conference of Legal Aid Societies, page 130.

216 LEGAL AID ORGANIZATIONS

work they can develop this scientific by-product.1 The proposition has been given
excellent presentation by the Board of Directors of the Boston Legal Aid Society
in these words:2

" To be militant in placing needed laws on the books, and vigilant in securing
their enforcement, are undoubtedly great services to the community, easily com-
prehended because of their dramatic appeal. What is even more sorely needed,
however, is a sensitive instrument with which to detect the failures of our legal
system, and a fund of social experience out of which to build anew.

" The present system of the administration of justice is in the process of under-
going great and far-reaching changes by reason of the attempt to re-shape its
antique framework to meet the needs of modern society. The great task is bring-
ing about experimentation with new methods of administering justice, elimi-
nation of unnecessary cost and complicated procedure, and the recasting of
the powers of the various courts. The rapid spread of administrative boards, the
instituting of small claims courts in which court costs are eliminated, together
with the lawyer, the project of a Domestic Relations Court combining the pres-
ent jurisdiction in that field of the Divorce, Probate, Criminal, and Juvenile
Courts, are all parts of the process of reconstruction. It is the readiness and abil-
ity to serve the community in this great task that has so suddenly thrust the
Society into its present unique position.

" The Legal Aid Society is often the only agent for collecting the needed data.
How many people are denied justice because they cannot afford to advance the
costs of court? Even the most systematically kept court records can disclose, at
best, the number of small suits actually begun, but not those which were never
brought because of poverty. The answer lies written in the files of the Society.
What are the most common abuses in the legal profession, and can they be less-
ened or eliminated ? How is the Workman's Compensation Act working out in
practice from the employee's point of view ? How far is the neglected wife, child,
or parent, prevented, by defects in the laws, from securing the support which
those very laws attempted to guarantee? These and many other vital questions
can be answered in whole, or in part, only by an analysis of the material which
is continually pouring into the offices of the Legal Aid Society."

Although the movement is only at its inception, tangible proofs of what it can ac-
complish are available and have been mentioned in earlier pages. The campaign in
Illinois for better laws regulating small loans was built up on facts many of which
were ascertained from data furnished by the Chicago Legal Aid Society. Similarly,
the evidence which proved the flaws in the Massachusetts law concerning wage as-
signments, and which also showed just what was necessary to provide adequate safe-
guards, came from the cases of the Boston Legal Aid Society. It was the study of the
evils of the justice of the peace system by the Legal Aid Society in Cleveland that
pointed the way to the small claims court. In New York, when the question of abol-
ishing arrest on execution for wage claims under fifty dollars was discussed, there

1 Report of Proceedings of the Second Conference of Legal Aid Societies, page 20; Ibid., Fourth Conference, page
63; 1 Philadelphia L. A. R. 8; 31 Chicago L. A. R. 13; 16 Boston L. A. R. 8 ; 15 N. Y. Legal Aid Rev. No. 2, p. 1.

2 Director's Report for 1916, 16 Boston L. A. R. 3, 4.

RELATION TO THE COMMUNITY 217

was much generalizing, but the actual facts of the use of the body execution and of
its effect were found in cases of the Legal Aid Society. On this one small point the
Society was able to produce one hundred and eighty-four cases covering a period of
two years.1 Along precisely the same lines, in the field of criminal law the defender
organizations can collect information which will give further assistance to the com-
munity in its ancient problem of crime and the treatment of criminals.

To do work of this sort, certain mechanical arrangements are indispensable. All
records must be accurately arranged so that they are easily available, and they must
be intelligently tabulated. Societies which have in the past prided themselves on
"doing their work instead of keeping records" must make an abrupt face-about and
fall into line with scientific progress. In the evolution of a technique of legal aid
work the guiding principle must be the planning of case and other records so that
they shall have definite meaning and can be utilized. This is one further reason why
a central and governing legal aid agency is imperative.

Some of this preventive law work the societies can do alone. Much more they can do
in cooperation with other agencies such as the courts, bar associations, labor commis-
sions, charities, and the like. It is easy to see how much cooperation could do, and
how necessary each would be to the other, in such matters respectively as denial of
justice through court costs, professional misconduct, non-payment of wages, and the
practical working of the laws governing support of families. Many of our commu-
nity problems are not yet solved. Some we are only beginning to perceive. Before defi-
nite steps can be taken there must be the stage of straight thinking and interchange
of opinion. This is an age of democracy, not only in government but in thought. Our
problems are so complex that no one man knows enough to see the whole solution.
Only by cooperation, by putting together the best thoughts from all sources, is the
remedy to be found.

The community needs light from every angle. It sorely needs to learn that putting
laws on the books is nothing. Enforcement is the test. If in actual application a law
fails to accomplish its intended purpose, then it is not the remedy. Here the legal aid
experience is invaluable, for in many instances the desired information can best come
from the legal aid organizations.

§ 4
The greatest service which the societies render to the community is their promotion
of good citizenship. By their protection of the immigrant and their securing to the
native born their legal rights, the legal aid organizations are each year

_... 7 . proving; to their hundred thousand clients the integrity and fairness
Citizenship ...

r of our institutions. This engenders respect for law, loyalty, and pa-
triotism. A competent observer has remarked2 that the legal aid society "has a

1 34 N. Y. L. A. R. 21. 2 Editorial in 8 Charities Review (1898), 4.

218 LEGAL AID ORGANIZATIONS

field which presents direct possibilities of promoting good citizenship and faith in
our institutions, especially among our immigrant population, such as are scarcely
afforded in any other way."

It was the vision of this service which the legal aid society could render that in-
spired Mr. Briesen to transform it from a restricted to an American organization.
A statement of this work for the making of good citizenship cannot better be pre-
sented than in his own words,1 written after having seen the process steadily going
on for twelve years: "It is not merely that we protect the weak from being wronged
and defrauded of that which is their just due; that is a great deal to be sure, but
there are other and collateral results which are of value to the community and the
country.

" The Society's work makes good citizens and arouses a sentiment of respect for
the laws, and also, I may say, a sentiment of patriotism. Many of our clients are
persons of foreign birth — people, often, who are ignorant of the laws and of how
to set the machinery of the law in motion. They have some vague idea that there
is law for the redress of wrongs, but they have heard that it is too costly a luxury
for the poor; that it is law for the rich and not for the poor. They know they have
been defrauded and wronged, but redress may seem to them hopeless. They have no
money to secure it, and therefore they think it is not for them. The consequence is
that they become bitter, not only against the particular person who has wronged them
but against society in general, against the country which permits society to be or-
ganized on so unjust a basis. Such persons — and they need not be confined to persons
of foreign birth by any means — are ripe to listen to those social agitators and dis-
turbers who are only too prevalent. They are ripe for enlistment in the ranks of those
who are regarded as dangerous to the security of law and order."

1 17 Ann. Am. Ac. Pol. & Soc. Science (1901), 165.

Chapter XXIII
LEGAL AID AND THE ORGANIZED CHARITIES

Workers in organized charity frequently find cases needing legal aid and
no other relief — cases where legal aid is the only thing necessary to relieve
suffering. Or it may be that material relief is needed ; but in addition a legal
redress of some wrong will effect the only permanent cure and reestablish
a family on a self-respecting, self-reliant footing. Marion Houston.1

IN considering the services rendered by legal aid societies to the various charity
organizations we are concerned not alone with those societies which are depart-
ments of charities, but with the work of all organizations of all types. Even the de-
partmental bureaus are not confined in their service to the charities of which they
are a part, although the form of their organization tends somewhat to restrict the
freedom with which other charities utilize them, but join with the independent or-
ganizations in giving their assistance and cooperation to all the charities in their
respective cities. This legal work consists not in advising the charity itself in its
corporate capacity on matters involving its entity or its policy, but in providing
legal advice and assistance in those cases which the charity has undertaken and
which present legal questions. For the sake of clearness we may also exclude the
relatively small number of cases in which the charity has no interest except to refer
them directly to the legal aid society. Thus we are not concerned with the case where
a man who has a wage claim goes to a charity because he does not know where else
to go and is forthwith sent to the legal aid office. Such a case does not differ from a
matter referred by a newspaper, or a private person, or from a direct application.
It requires no cooperation and implies no relationship. The situation, which it is
the purpose of this chapter to discuss, is that where a charity in trying to work out
some case problem presented to it finds itself confronted with a legal question which
may be the major or minor issue in the case, but which must be answered if the case
is to be properly diagnosed and treated, and which the charity worker himself is not
qualified to decide.

The charities in their daily work with individuals and families constantly find sit-
uations that call for legal advice and assistance. Persons apply for charitable assist-
Th v 7 t ance when they are in trouble, and that trouble invariably traces
its origin back to one or more of three causes — individual frailty
or weakness, which is the rarest cause; social or economic maladjust-
ment, which is the commonest cause; and what may be called legal maladjustment or

1 From an article on Cooperation in 2 N. Y. Legal Aid Review, No. 1, p. 2 (January, 1904), by Marion Houston, who
was at that time the representative of the Executive Board of the Council of Civic Cooperation in New York.

220 I.EGAL AID ORGANIZATIONS

inability to secure redress by law, which is a very frequent source of trouble. Illness
is an example of the first, unemployment of the second, and of the third an injured
workman unable to secure compensation, a family whose breadwinner pays the greater
portion of his wages to some loan shark, a deserted wife, or the mother of an ille-
gitimate child.

It is the task of the trained social worker not merely to tide over any emergency
which may exist, but, what is more important, to diagnose the case with a view to
preventing a recurrence of the cause and of lifting the person or family out of a
subnormal condition to one of independence and self-supporting self-respect. When
the difficulty or a part of the difficulty appears to involve law, the social worker
needs to be able to secure prompt, accurate, and expert advice. The charities have
from their origin faced this difficulty if their cases were to be intelligently conducted,
but it is only within comparatively recent years that the difficulty has become one
of great concern. This is largely the result of two factors. First, the changed con-
ditions which resulted in wholesale denial of justice to the poor at once increased
the number of cases where the distress could be traced to legal maladjustment. Sec-
ond, with the modern training of the social worker the emphasis has been laid on
preventing the recurrence of the trouble, which in turn has called for skilled diag-
nosis, and this has uncovered the existence of situations calling for legal action which
formerly would have been passed over. Whereas the charity worker was formerly
content to supply material assistance to a destitute family, now the educated social
worker makes an objective of finding the deserting husband, and of compelling
him to perform his moral and legal duty to support his family. This changed point
of view marks the development of charity into social service which is not the less
sympathetic because it is the more intelligent.

In their endeavor to secure adequate legal advice and assistance, the charities have
customarily adopted an expedient which is called the volunteer counsel or honorary
counsel plan. They have placed on their directorates or committees one or more at-
torneys, prominent in the profession, who were supposed to hold themselves in readi-
ness to give instruction on points of law. However satisfactory this arrangement
may have been in earlier times, it has proved entirely inadequate under present con-
ditions in the large cities. Just as the private law offices formerly cared for poor cli-
ents and did legal aid work in their own offices, and when the great demand for free
legal assistance came were unable to cope with the need, and because of the altered
conditions of law practice gradually gave up the legal aid work altogether, so much
the same change has gone on with regard to the work of honorary counsel for charity
organizations, except that the facts were not as quickly realized and the necessary
readjustments were more slowly made.

Three flaws are clearly apparent in the volunteer or honorary counsel plan. It fails
to provide as prompt or as much legal advice as social workers need. The lawyers who
are chosen for the positions are men of reputation and extensive practice. They are

RELATION TO THE CHARITIES 221

extremely busy. Workers are very much disinclined to bother such men with what
may seem petty questions. They do not feel free to go to such offices as often as may
be necessary to have legal doubts in their cases resolved for them. When they do go
they are quite likely to find the lawyer engaged in conferences or meetings which
cannot be interrupted. This is not the fault of the individual lawyer; it is not that
he attempts to evade his responsibility — nearly every one has rendered conscientious
service; it is the fault of the conditions which attend the plan.

In the second place the charity work suffers because it is not the lawyer's first
business to care for such cases. Modern offices work under pressure, and when a choice
has to be made between the firm's business and the charity case, it is inevitable that
the former should obtain precedence. The charity case is put by until a more favor-
able opportunity, or else it is turned over to one of the office "cubs," who has just
graduated from law school, to experiment with. It is a general rule that the cases
presented by the charities cannot afford to wait. The worker presents the problem in
order to be able to plan the best possible relief in the light of the legal situation
that is involved. If the legal answer or the legal action cannot be had promptly, the
arrangements go awry and constructive progress is greatly hindered. For example, if
the charity case is one of family destitution because the father has been injured
and is not receiving compensation, the charity worker needs to know at once whether
compensation will automatically be paid after two weeks, or whether a contest will
be necessary, and if so, how long it will probably take, or whether there is no chance
for any compensation. Only with these questions answered can the worker form any
intelligent estimate of the best course to pursue. If compensation is to be available
shortly, the problem is only one of tiding over an emergency; if there is no legal
relief in sight, then the injured man must be trained in some lighter sort of work
and a position be found for him ; if a contest is necessary, then a very delicate bal-
ancing of probabilities concerning the chance of success and the time required has to
be undertaken with the lawyer's close cooperation.

Finally, the volunteer counsel plan is not calculated to procure accurate or expert
advice. If it does secure accurate advice, it is only in a most uneconomical way. The
body of the law is now so vast that no one man knows it all or can keep pace with
its growth. Specialization has necessarily resulted, and the larger offices, from which
the honorary counsel are drawn, have generally specialized along lines of corpora-
tion, banking, business, and property law. The legal problems of the poor do not
fall in these fields. It is not surprising that the patent expert knows nothing about
a boarding-house keeper's lien or that the corporation expert knows nothing about
the criminal procedure to enforce family support. Many of the cases that come to
the charities from the poor are in the by-ways of the law in which most lawyers are
not expert and about which they know very little.

To make this concrete, we may consider two typical situations. One great group
of charities in our larger cities are known as the associated, or united, or federated

222 LEGAL AID ORGANIZATIONS

charities, or charity organization societies. In their cases a common problem relates
to the loan shark. A destitute family needs help because the wage-earner pays ten
per cent per month interest on a loan. The precise question is whether there is any
legal relief, and with this question the social worker goes to the charity's counsel.
It is quite likely that he has only a vague knowledge of the law and therefore must
needs look it up. As this subject has been a battle-ground of contention in the last
five years, the statutes represent a series of acts, repeals, amendments, and revisions,
with the usual embroidery of case interpretations, further supplemented in several
jurisdictions by administrative rulings by loan supervisors or bank commissioners.
In his search the lawyer finds his digests valueless, the statutes a maze, and perhaps
he overlooks the administrative rulings which are unknown to many lawyers. If he
decides that the rate of interest is in excess of law, he is confronted with procedural
doubts. He may find that the most summary procedure is before an administrative
official, but the nature of such proceedings is not familiar to him. When he finally
gets his result, much valuable time of a valuable man has been wasted. The attor-
ney for the legal aid society could be called on the telephone, and in many instances
would have the accurate answer on the tip of his tongue. The contrast is not one of
personalities, but of system. The legal aid attorney is probably the inferior lawyer
of the two, but he has had several hundred cases of the sort, he has been through the
procedure often, so that the entire law on this subject is an open book to him.

Our second great group of charity organizations are the children's agencies. A
common problem with them is that of the illegitimate child. In planning the chrkTs
future, the primary considerations are whether the alleged father can be compelled
to provide support and, if so, what order can be secured. The chances are that the
honorary counsel cannot accurately estimate the situation because in his entire prac-
tice he may never have had a bastardy case. These matters are commonplaces in the
legal aid office. Their attorneys have scores of such cases, they have been through
bitterly contested trials and know the pitfalls, they have submitted briefs and know
the law, and through frequent appearances they know the sort and kind of evidence
which judges require to fix paternity and make orders for support.

These statements rest not alone on their intrinsic reasonableness. They are sup-
ported by direct evidence from the charities themselves.1 In connection with this
study letters were sent to the charity organization societies in all cities where there
are no legal aid organizations, asking how they cared for the legal problems in their
cases and if their arrangements were satisfactory. A few replied that they were able
to use nearby legal aid societies ; the vast majority stated that they used the volunteer
or honorary counsel plan. As to the effectiveness of that arrangement, the opinion
varies according to the size of the cities. Places having a population2 of less than

1 T7ie First Report of the Legal Aid Bureau of the Federated Charities of Baltimore contains an excellent state-
ment, pages 1-7.

2 Population figures are based on the 1910 Census figures.

RELATION TO THE CHARITIES 223

ten thousand report that they have few, if any, legal problems. The charity societies
in cities with populations ranging up to forty thousand find that for such legal mat-
ters as are presented the voluntary counsel plan is generally satisfactory. In the replies
from charities in cities with from forty thousand to seventy thousand inhabitants,
there is a note of doubt. The remark is repeatedly made that the plan can be only
temporary in its success and will be outgrown if work increases. The charities in
cities above seventy thousand, with one exception, report a need for a more definite
method of caring for their legal problems. The one exception is Denver, where the
Social Service Bureau is able to avail itself of the services of an attorney who was for
several years chief attorney for the Chicago Legal Aid Society. Such an exception
tends rather to prove the rule.

§ 2

The volunteer counsel plan in the larger cities fails to give the service which the

charities ought to have. There are two alternative remedies, one for each charity to

. retain and pay its own attorney, and the other for the charities to

a- j n utilize the staffs of the legal aid organizations. A few of the largest

° . . charities, particularly the Humane Societies, have adopted the former

° course. Most of the charities, however, are now obtaining their legal

advice from the legal aid societies.

The various legal aid organizations do a great amount of work for the charities
in their respective cities. We have noted earlier in examining the sources of legal aid
work that a very substantial number of cases came from the charities. These numbers
refer only to clients, and do not include calls from social workers for advice. In St. Paul
the record of such calls which has been kept shows that in 1913 workers sought the
legal aid society's assistance in forty-seven instances, in 1914 two hundred and eighty-
seven times, in 1915 seven hundred and seventy-six times, and in 1916 nine hundred
and fifty-four times.1 This last figure represents over three calls each working day.
The legal aid reports contain frequent references to this particular phase of their
work.2 Perhaps the most advanced step has been taken by the Children's Aid Society
in Boston, which has retained the Legal Aid Society as its special counsel and thereby
is able to command a definite amount of time for its workers. It has given the pro-
position this clear expression:3

" It is desirable that our workers have easy access to lawyers having a wide know-
ledge of all laws affecting our work, and it is also desirable that this knowledge
and experience be concentrated in the office of an organization such as the Legal
Aid Society. Our legal problems are uncommon in the average law office.

1 Report of Proceedings of the Fourth Conference of Legal Aid Societies, page 107.

2 Report of Proceedings of the Fourth Conference of Legal Aid Societies, page 104; Ibid., Second Conference, page 29;
Ibid., First Conference, page 7; 19N.Y.L. A. R. 26; 8 Philadelphia L. A. R. 8. 10; 6 Chicago L. A. K. 6; 3 N.Y. Legal
Aid Rev. No. 2, p. 4; 11 Ibid. No. 1, p. 4; 11 Ibid. No. 3, p. 4.

s Boston Children's Aid Society, Report for 1916, page 26.

224 LEGAL AID ORGANIZATIONS

" The Legal Aid Society is also used as counsel by many of the other social
agencies in the city. It is therefore acquiring an experience in the handling of
such work as to make it of unusual help; first in the treatment of immediate
legal needs and second in the analysis of defective procedure and the devising of
remedies."

The legal aid organizations are qualified to give to the charities accessible, prompt,
and expert legal service. Their attorneys are always available for consultation, because
that is a part of their duty. For a like reason the necessary work can be promptly
performed. Cases brought by the charities are a part of the work which it is the busi-
ness of the legal aid society to undertake. Charity cases are carried through by a
legal aid office just as a paying client's case is conducted by a private law office. The
service is expert because the legal aid attorneys, through long and repeated experi-
ence, become specialists1 in the law which is most commonly involved in the cases
of the poor.

§ 3
Each large city now has its several charities dealing with the various kinds of prob-
lems which are presented. The addition of the legal aid society completes the circle.2

gi . The system of cooperation whereby the charities bring their cases to

" the legal aid society is not only better than that of the volunteer coun-

sel plan but, for several reasons, it is preferable to having each organization retain its
own attorney.

Centralization fixes responsibility, avoids duplication3 and waste of effort, and re-
duces cost. The situation here is like that discussed earlier, when it appeared that
various courts, tribunals, and administrative departments needed from time to time
to refer cases to attorneys. Here as there, it seems sounder to have one central bureau
to which all similar matters may be referred rather than a decentralized system of
one attorney for each organization or department.4 This is so because the problem
is a unit and the cases, from wherever they are referred, are of the same nature.

Cooperation by the charities operates to increase the advantages which the legal
aid societies of themselves can give. As the charities send in all their legal cases to
the one central agency, its experienceis automatically increased, its staff becomes more
expert, and consequently its service to the charities reaches a higher plane of profi-
ciency. Both the legal aid societies and the charities are serving the same community.
Each needs the other, and their close cooperation brings about mutual benefits.5

The pooling of all experience in one office furthers the preventive work which
the legal aid society can do by affording it more material from which to diagnose
legal ills and ascertain their remedies. If each charity were to have its own attorney,

1 Report of Proceedings of the Fourth Conference of Legal Aid Societies, pages 107,118, 119.

1 24 N. Y. L. A. R. 17. 8 3 Chicago L. A. R. 12.

1 See ante, page 89. 6 15 N. Y. Legal Aid Rev. No. 2, p. 6.

RELATION TO THE CHARITIES 225

devoting only a part of his time to such work, there would be a wealth of material so
divided up in a number of offices that it would be unintelligible. Two hundred wage
assignment cases in one office afford a sound basis for constructive reasoning; if split
up into twenty offices, the salient facts appear less clearly and there is hardly enough
experience in any one place to afford a satisfactory test for any conclusions.

While the legal aid organizations undertake preventive law work primarily for the
benefit of the community at large, the charities profit from all such work. As the poor
are better protected from extortion, and as the application of the law is made more
prompt and certain in bringing redress, the area within which legal maladjustment is
a provocative cause of distress is narrowed, the burden of the charities is lightened,
and for the future they are able to bring about more permanent results in such of their
cases as come within the added protections secured by the legal aid organizations.

Chapter XXIV
LEGAL AID AND THE BAR

It is the sense of this Conference that bar associations, state and
local, should be urged to foster the formation and efficient adminis-
tration of legal aid societies for legal relief work for the worthy poor,
with the active and sympathetic cooperation of such associations.1

THERE is a direct relationship between legal aid organizations and the mem-
bers of the bar, both as individual attorneys and as a collective body. Out of
this relationship there spring reciprocal obligations to be observed by each and ser-
vices to be rendered to each. While the responsibilities are bilateral, the performance
is still very much one-sided. The legal aid societies have recognized their position and
have served the bar to the limit of their ability; the lawyers are only dimly aware
that they owe a debt to legal aid work, and as yet they have not taken the part which
may fairly be expected of them. Where there ought to be the closest possible alliance,
there is not a semblance of ordered and sustained cooperation. It is profitless to at-
tempt to fix or apportion the blame for the past; but it is of high importance both
to the cause of legal aid work and to the reputation of the profession, that the wholly
unsatisfactory nature of the present situation be stated and that steps, calculated to
improve it, be suggested.

The services which legal aid organizations have rendered, and are rendering, to the
bar may be first considered, as they are undisputed and can be simply explained. Sum-
j . . _ marily stated, the societies are performing for the bar its legal and moral
° . responsibility to poor persons needing legal assistance, by virtue of their

work and their position they are strengthening the reputation and pop-
ularity of the profession in the community, they are disclosing and bring-
ing to the proper authorities cases of abuse and misconduct by individual attorneys,
they are from time to time advising and assisting individual lawyers on matters in
which they have become specialists, and they are more and more cooperating with the
bar in its efforts to better the administration of justice, to keep the profession clean,
and to secure proper educational training.

Most of these points have already been considered in their appropriate connections.
The profession is admittedly interested in legal education and in standards for ad-
mission to the bar. Many state bar associations have special committees on legal edu-
cation. The Section of Legal Education of the American Bar Association is working
with the bar examiners to erect and maintain suitable standard educational require-

1 From a resolution unanimously adopted by the Conference of Delegates of State and Local Bar Associations at
their meeting, held in conjunction with the American Bar Association, on September 3, 1917. 3 Am. Bar Ass'n Jour-
nal, No. 4, p. 592; 42 Am. Bar Ass'n It. (1917)437.

RELATION TO THE BAR 227

merits for admission to the bar. Their encouragement of the Carnegie Foundation's
study of legal education, of which the present volume is a part, has been more than
generous. One mooted and perplexing question has been the requirement of train-
ing in practice. Here the legal aid society steps forward, partakes in the discussion,
and offers a tangible solution. It was through the legal aid society that the articles
on the legal clinic by Dean Wigmore and William V. Rowe were brought to the atten-
tion of all the bar associations in the country. So far as its position warrants, the legal
aid society is contributing its thought on those aspects of the question which are
peculiarly within its knowledge, and it stands ready to assume its fair share of the
burden in bringing about the clinical training of law students in its offices.

The bar is closely concerned with the administration of justice and with its bet-
terment. We have seen that the legal aid societies have played an important part in
the shaping of the law,1 and that they have developed as far as anybody within the
profession the science of preventive law.2 In all such work they are in fact cooper-
ating with the bar and furthering the bar's interests. Of less importance but deserv-
ing mention is the assistance to individual lawyers in particular cases. Legal aid
attorneys have become experts in the law governing certain types of cases, such as
workmen's compensation, separation between husband and wife, assignments of wages,
small loans, illegitimacy, criminal proceedings to enforce support, and most recently
in the laws concerning men in military service. It is a common thing for attorneys in
private practice to ask for advice and suggestions when such a case is brought to their
office. All assistance of this sort the societies gladly furnish.

Discipline is a primary concern of all bar associations. In this unpleasant and dif-
ficult work the legal aid societies have proved themselves valuable allies. They serve
to supplement the jurisdiction of the bar associations by bringing to light abuses
which would not otherwise be known. In the great cities, where the bar is so large
that the members do not know one another, where personal acquaintance is limited to
one's own circle of practice, the legal aid societies deal with a class of attorneys who
are unknown to the leaders of the bar, they negotiate with them, try cases against
them, and come into contact with them in daily practice, so that they are in a posi-
tion to detect improper and unlawful conduct. They can also observe those collec-
tion agencies, dealing in the smaller claims against the poorer people, which carry on
their business in a manner perilously close to the line prohibiting the practice of law
by corporations, and which secure their collections in devious ways including the use
of demand notes, forms of complaint, and summonses that approach abuse of legal
process. It must never be forgotten that the legal aid organizations act and speak
for those who are particularly defenceless and who, when they are imposed upon, or
cheated, or charged extortionate fees are completely at a loss as to what they should
do, and have no money to engage counsel to institute proceedings for redress in their

1 See ante, Chapter XXI, Legal Aid and the Law, page 200.

2 See ante, Chapter XXII, Legal Aid and the Community, § 3, page 214.

228 LEGAL AID ORGANIZATIONS

behalf. At this most needed point the legal aid societies can best stand as guardian.
They have won the confidence of these poorer classes and are generally known to
them. The societies, very fortunately for work of this sort, are in an impartial position
which is respected. They have no private interests at stake, they do not act to earn a
fee, and the lawyer whom they call to render an accounting knows that they are acting
only in accordance with their duty. Just as they have served to extend the adminis-
tration of justice into this great field at the bottom of society, so they have extended
the watchfulness and discipline of the bar association.1 They have brought hundreds
of cases to grievance committees in all parts of the country. They are in a position
to do even more, and if accorded a measure of encouragement, they will do more.

What have thus far been presented may be called minor contributions. There
remain for consideration two great services which are performed by all legal aid or-
ganizations everywhere for the benefit and in behalf of the bar. They are a most
powerful influence in preserving the faith of the common people in the integrity of
the bar. The profession as a whole, particularly its better members, has no concep-
tion of the appalling number of persons who to-day view the lawyer with suspicion
and distrust. The deadly parallel between the commentary of De Tocqueville on the
American bar and that of Bryce, fifty years later, is well known.2 The change from
"the highest political class" and "the only enlightened class whom the people do not
distrust" to "a part of the great organized system of industrial and financial enter-
prise" ceasing "to be so much of a distinct professional class" is a matter of history.
The change is summed up in the saying that formerly lawyers had clients, now clients
have lawyers.3 Since Bryce, a period of forty years has elapsed, during which the pen-
dulum might have swung back in a more favorable direction, but it has not. The
distrust of lawyers to-day is marked,4 but it differs from the dissatisfaction of earlier
times in that it is not the product of jealousy or fear of a new ruling class, but pro-
ceeds from intelligent criticism founded on facts. In these forty years a generation
has been born, grown up, and is now carrying on the affairs of the world and caus-
ing most of the cases which require legal treatment. This generation, at least that
part born in the lower social stratas, has apparently been taught from infancy that
lawyers are a class who prey on the weak, who profit out of their misery, and who
are so strongly entrenched that the state cannot curb them. To this attitude the con-
tingent fee, the commercialization of the profession, and the lowering of standards
have, in their results, all contributed. Quite typical is the remark of the applicant
for legal aid who, on being told that the society could not accept his case and that
he should go to some honest lawyer, replied that he had never associated together the
words "honest" and "lawyer." This man was not a tramp, or a dead-beat, or even a

1 Report of Proceedings of the First Conference of Legal Aid Societies, page 48 ; 33 N. Y. L. A. R. 25.

2 Brandeis: Business — A Profession (1914), pages 314-318.

3 That the lawyer has tended to become an employee is noted by Dean Pound in his address, Causes of Popular Dis-
satisfaction with the Administration of Justice, in 29 Am. Bar Ass'n R. 395, 415.

* History of the Harvard Law School (1917), page 155.

RELATION TO THE BAR 229

charity applicant. He had been a painter for twenty years and had always supported
himself and his family, until an accident disabled him and forced him to seek redress
by law. That the large majority of their clients entertain a low opinion of the bar
is the unanimous testimony of the legal aid attorneys. They do not speak in haste
or with bitterness. They merely voice a conclusion forced upon them by the thousands
of persons who annually pass in and out of their offices.

The legal aid societies strive to teach their clients not only that the law is fair, but
that lawyers are not without honor and conscience. The work is done by men who are
themselves lawyers, who hold high ideals of professional obligation, and who feel keenly
the reproaches flung at their profession. Their work serves as a pledge of the bar's
good faith, and they gladly give to the bar as much credit as can truthfully be ascribed
to it. Were they in a position to state that in all their work they were acting for the
whole bar, and performing for it its recognized collective responsibility to see that
no one was denied justice because of inability to pay fees, they could implant in the
minds of the multitudes who seek their assistance a renewed faith in the integrity of
the bar in this country, and a renewal of the law-abiding spirit. The legal aid societies
are undeniably popular. If the bar were more closely identified in the public mind
with their work, the same good will would be reflected and attach to it. An eminent
lawyer has written to his profession concerning the legal aid society:1

"But we can do nothing which will so surely increase public confidence in us
collectively as to make this society flourish as a distinctively legal charity."

The last and greatest service which the legal aid organizations render is that in
all their work they are relieving the bar of a heavy burden by performing for the
bar its legal and ethical obligation to see that no one shall suffer injustice through
inability, because of poverty, to obtain needed legal advice and assistance. Each case
which a legal aid organization undertakes puts the bar in debt to it, for in the con-
duct of that case it is doing the work of the bar for the bar.2 This fact discloses the
essence of the relationship between legal aid organizations and the bar. It is com-
monly expressed in the narrow language of providing a place to which lawyers may
send their charity cases, leaving themselves free to engage in remunerative work.
This is but a small aspect of the situation ; it fails to include the thousands of per-
sons who never apply to private offices, knowing that they cannot pay the expected
fees, and yet who need counsel and representation if they are to secure justice. With
all these persons the members of the bar are concerned. As individuals and collec-
tively as a profession, they are under obligation to give or provide them the necessary
legal assistance. To-day the bar performs its obligation vicariously through the legal

1 Holls: The Legal Aid Society, 8 Charities Review (1898), 21. Cf. 2 N. Y. Legal Aid Review. No. 4, p. 2. It is inter-
esting to note that the same thing has been said to the English bar, 48 Law Journal (1913), 180.

2 Cf. 8 Chicago L. A. R. 9 ; 7 Pittsburgh L. A. R. 11. By far the best presentation of this fact is contained in a letter
under date of Decembers, 1916, from George S. Hornblowerof the New York Legal Aid Society to Bronson Winthrop,
chairman of a special committee of the New York City Bar Association appointed to investigate the Legal Aid
Society.

230 LEGAL AID ORGANIZATIONS

aid organizations. It is proper that it should be done in this organized way which
secures economy and efficiency,1 but it does not make an end of the responsibility
resting on the bar. The very fact that the legal aid organizations are thus doing the
bar's work places the bar under obligation to supervise and provide leadership for the
legal aid work and to supply the necessary financial and moral support. These are
the services which lawyers should render to legal aid work. The legal aid organiza-
tions are entitled to look to the bar for this leadership and support. Such assistance
is accorded in scanty measure because the bar in general does not see the situation
in this light, and apparently does not admit the premise that there rests on every
lawyer a definite duty toward the poor litigant.

With this present prevailing opinion it is impossible to bring home the obligation

of the bar to legal aid organizations without first making clear the lawyer's duty

, to the poor litigant. It is the general rule that each attorney, on his

. " admission as a minister of justice and agent of the court, becomes

Obligation to , . , . . «_ ., , , xj

te subject to assignments from the court to represent needy persons

without charge or for any fee they may be able to pay. The theory
of this obligation is not peculiar to our law; it is a characteristic of the lawyer's po-
sition in all civilized communities, and there is evidence that it has been recognized
from the earliest times.2 In criminal cases the legal nature of the obligation is clear
because it is enforced. No statute is necessary to give the court this right to call
upon the bar, its power is inherent, and statutes only declare it.3 In civil cases, as
we have already seen,4 the power has fallen into such disuse that its existence is for-
gotten or denied. Because it is not employed there is an absence of authorities
squarely on the point, but in a number of decisions the language shows unmistak-
ably the court's opinion of the rule of law.5 The reason for the rule is precisely the
same in civil as in criminal cases,6 and the court has the same inherent power to
command the services of counsel in aid of persons unable to pay.7 There are statutes
expressly conferring this power in civil matters on certain courts in certain cases in
Illinois, Indiana, Missouri, New Jersey, New York, and Tennessee; and Congress by

1 Cf. 3 Am. Bar Ass'n Journal (October, 1917), 589.

2 Brunner: Early History of the Attorney, 3 Illinois L. Rev. 257.

3 Presby w. Klickitat County, 5 Wash. 329, 332; 6 Corpus Juris, 727.

4 See ante. Chapter XIV, § 1, page 100.

6 House v. Whitis, 5 Baxt. (Tenn.) 690, 692; Matter of Kelly, 12 Daly (N. Y.), 110; Harris v. Mutual Life Ins. Co. 13
N. Y. Supp. 718; Todd v. Todd, 9 N. J. L. J. 342 ; Kern v. State, 35 Ind. 288; see the text statements in 16 Encyc. of
Pleading and Practice, 690, and 3 Am. & Eng. Encyc. of Law, 417, 419.

6 Cf. Goldman: Public Defender (1917), page 18.

7 This opinion is confirmed by George P. Costigan, Jr., Professor at the Northwestern University Law School, who
has just completed an exhaustive study of cases bearing on the lawyer's duty in all its aspects in connection with
his source-book entitled "Cases and Other Authorities on Legal Ethics" (1917). Professor Costigan, in response to
an enquiry, states: " It seems to me clear that there is a duty on every lawyeras an officer of the court to accept an
appointment by the court to represent poor clients in civil as well as in criminal cases."

RELATION TO THE BAR 231

Act of July 20, 1892, in dealing with the in forma pauperis proceedings, authorized
the assignment of counsel in the federal courts.1 The assignment of attorneys to act
as divorce proctors is a further illustration of the same power.2 Under the provision
of the Soldiers' and Sailors' Civil Relief Act every court in the land is empowered in
all cases and required in certain cases to assign counsel to act in behalf of men absent
in military service.3

That the attorney, because of the nature of his office, is under legal obligation to
assist needy suitors finds confirmation in the laws and customs of other countries.
In France, the obligation of service was early enunciated by a royal edict which said
of the attorney, " He was not, under pain of being disbarred, to refuse his services
to the indigent and oppressed." 4 The obligation is still recognized,5 and on it is based
the French system of securing legal assistance to the poor known as "l'assistance
judiciaire." 6 In Spain, the attorneys on admission swear "to take charge of cases com-
mitted to them by the courts at the instance of litigants who could not find a law-
yer; to defend gratuitously poor clients where there were no lawyers paid for that
purpose.117 Likewise in Italy, lawyers must give gratuitous service to the poor.8 The
German system known as " the privilege of the poor," which is analogous to the French
judicial assistance and to our in forma pauperis, permits citizens in cases of exigency
to demand from the government the services of a lawyer.9 The two Scottish bar asso-
ciations undertake each year to furnish solicitors and advocates, who are then assigned
by the court in cases of indigent suitors.

In England the assignment system has for years been as little used in civil cases
as in the United States. Concerning the common law, Chief Justice Hale is credited
with the statement that if the court assigned a Serjeant to be counsel and he refused
to act, the court would make bold to commit him to prison.10 During the last half
century the English administration of justice failed as completely as that in the
United States to secure equality and to provide for the cases of the poor. The fail-
ure was in many ways more serious because no organized legal aid movement devel-
oped to ameliorate this condition as it did in America. In 1913, however, the Supreme
Court of Judicature issued rules providing a comprehensive plan for securing to the
poor their day in that court with adequate representation. The power of assignment

1 Whelan v. Manhattan Ry. Co. 86 Fed. 219. 2 This has been stated ante in Chapter XIV, § 2, page 102.

3 Public Act No. 103 of the 65th Congress, §§ 200 et seq.

4 Carter: Ethics of the Legal Profession (1915), page 26.

6 Fuller: The French Bar, an address delivered before the New York City Bar Association, and later published in
23 Yale Law Journal (December, 1913), 113, 120.

c See post, Chapter XXV, § 8, page 246. Cf. Parry: The Law and the Poor, page 147 ; 105 Contemporary Review, 562;
Speech of M. Bruwaert, French Consul-General in New York, at the Legal Aid Society Banquet, Report of Speeches
at Twenty-fifth Anniversary Dinner of the New York Legal Aid Society, page 28: Thery: French Legal Assistance
for the Poor, 1 International Law Notes (January, 1916), No. 1, p. 12.

7 Manuel Rodriguez-Serra: Admission of Attorneys from Vie Spanish Standpoint, 35 Am. Bar Ass'n R. 842 ; Cohen:
The Law — Business or Profession ? (1916), page 61.

8 Cohen: Ibid., page 64. 9 7 N. Y. Legal Aid Rev. No. 3, p. 17.
10 3 Campbell's Lives of the Chief Justices, 20.

232 LEGAL AID ORGANIZATIONS

was revived. Because of the similarity in legal institutions, English precedents carry
more weight with us than those of any other country, and for that reason the court's
declaration of the attorney's duty is significant. No act of Parliament gave to the
courts the control which they purpose to exercise. The High Court rightly considered
that it had ample inherent power. The rules provide for the formation of lists of
solicitors and barristers who volunteer their services and then continue:1

"Rule 26 And the Court or Judge or proper officer shall assign to the appli-
cant a solicitor and a counsel (whether named in the list kept pursuant to Rule 23
(2) or not), to assist him in the conduct of the proceedings. . . .

"27. A solicitor or counsel assigned under Rule 26, shall not be at liberty to
refuse his assistance unless he satisfies the proper officer or the Court or a Judge
that he has some good ground for refusing."

This obligation owed by every lawyer to the poor, which is stated with reasonable
clearness in the American cases, and which is undisputed in other systems of law,
finds unmistakable support in the accepted standards of ethics. In other words, this
duty is in part a legal obligation because the lawyer is a minister of justice, and in
part an ethical responsibility because of his membership in a profession. In matters
of this sort accepted canons of ethics are entitled to as much weight as decisions in
adjudicated cases and most attorneys so regard them.2

When the adoption of the present canons of ethics of the American Bar Associ-
ation was under discussion, Mr. Justice Brewer pointed out that the most important
part was the Oath of Admission, which included within itself the final statement of
the lawyer's duty.3 Of this Oath it is said in Part III of the Canons as adopted,4 "The
general principles which should ever control the lawyer in the practice of his profession
are clearly set forth in the following Oath of Admission to the Bar, formulated upon
that in use in the State of Washington, and which conforms in its main outlines
to the duties of lawyers as defined by statutory enactments in that and many other
states of the Union — duties which they are sworn on admission to obey and for the
wilful violation of which disbarment is provided." The final clause of this Oath is:5

"I will never reject from any consideration personal to myself the cause of the
defenceless or the oppressed, or delay any man's cause for lucre or malice. So help
me God."

In these time-honored words the obligation of service is imposed.6 Here there is
no distinction between the duty in civil and criminal cases. This broad declaration
is supported by similar statements in all treatises on ethics. The first code of ethics
in America was probably that drawn up by David Hoffman early in the nineteenth

1 These rules are contained in the 1914 Rule Book. They are Order 16, IV, Proceedings by and against Poor Persons.

2 Cf. statement of the Missouri Bar Association concerning the canons of ethics adopted by the American Bar As-
sociation, 39 Am. Bar Ass'n R. (1914) 562.

3 See 31 Am. Bar Ass'n R. 62; 33 Ibid. 570. * S3 Ibid. 584. B 33 Ibid. 685.

e The lawyer's oath in the Canton of Geneva, which has been in force for years, reads: "I swear before God not to
reject, for any consideration personal to myself, the cause of the weak, the stranger, or the oppressed."

RELATION TO THE BAR 233

century. As he expressed it in his eighteenth canon:1 "I shall never close my ear or
heart because my clients' means are low. Those who have none, and who have just
causes, are, of all others, the best entitled to sue or be defended; and they shall receive
a due portion of my services, cheerfully given.11 Sharswood in the course of his cele-
brated lectures on ethics referred to this duty in several connections. Of the bar in
general he said:2 "It is indeed the noblest faculty of the profession to counsel the
ignorant, defend the weak and oppressed, and to stand forth on all occasions as the
bulwark of private rights against the assaults of power." And of the lawyer he said:3
"There are many cases, in which it will be his duty, perhaps more properly his privi-
lege, to work for nothing. It is to be hoped that the time will never come, at this
or any other Bar in this country, when a poor man with an honest cause, though
without a fee, cannot obtain the services of honest counsel, in the prosecution or de-
fence of his rights." The Hon. Charles E. Hughes, formerly a justice of the Supreme
Court of the United States, has said : " To take from the poor man a part of the bur-
den which necessarily falls on him because of his poverty and see to it that he obtains
in every proper case his legal rights has always seemed to me to be a part of the duty
of the lawyer.114

By well-settled principles of professional ethics and by the voice of authority, so
far as the courts have been called upon to express their judgment, the attorney is
called upon to render services to the needy. This he has not done. The legal aid soci-
ety has done it for him. The attorney for the Pittsburgh Legal Aid Society appeared
as counsel for a woman, the prosecuting witness in a criminal case, only a few years
ago. The attorney for the defendant in his address to the jury remarked that the
legal aid appearance was unwarranted and that the entire county bar stood ready to
assist such a needy woman. The facts were that the woman had consulted several mem-
bers of that bar, who had relieved her of what little money she had without doing
anything for her, and only then did she seek the help of the legal aid organization.5
As a fact of general application it is not true that the members of the bar despoil
the poor — some of them do, but they are a small minority; yet it is the fact that
the bar as a whole has done almost nothing to assist the poor in securing that justice
which our institutions profess to guarantee them. With the existence of organized
legal aid work, blame does not attach to the bar for allowing such organizations to
undertake the cases of the poor. This method of meeting the need is in every way
desirable. But having permitted the legal aid societies to perform for them for their
own professional obligation, censure justly attaches to the members of the bar for
having failed to give something of their earnings for the support and something of
their time for the leadership of this legal aid work.

1 2 Am. Law School Rev. 230, 232.

2 Sharswood : Professional Ethics (fifth edition, 1884), page 63. 3 Ibid., page 151.
4 16 N. Y. Legal Aid Review, No. 1, p. 1.

6 2 Pittsburgh L. A. R. 18.

234 LEGAL AID ORGANIZATIONS

§ 3

By virtue of the position and work of the legal aid organizations in the community

the obligation of the bar to the poor may be said to have been hypothecated to the

e • ^ legal aid organizations. They having performed and being equipped to

D better perform the bar's responsibility to the weak and oppressed, the

bar should feel that it is incumbent on it to render to the legal aid soci-

° , eties the services of which they stand in need.

tVoTK . .

The legal aid societies need leadership, moral support, and financial
support. These three things go together and are of one piece. They are essential to
the well-being of every legal aid organization. One fact which very forcibly strikes
the observer of the work in different cities is that legal aid success or failui'e goes
hand in hand with good or bad support from the bar. Given the amount of interest
and cooperation accorded by the local bar, the strength of the legal aid work can be
accurately estimated and foretold. No society can flourish in the face of hostility, or
suspicion, or indifference from the attorneys of the city. In this situation there is no
middle ground; those who are not with the work are necessarily against it. To know
nothing about legal aid work, to care nothing about it, and to do nothing for it is
to doom it as effectively as by open opposition.

The vast portion of the bar has been in this middle position. They have paid little
attention to the work and its needs. One could read the proceedings of ninety-five
per cent of the various bar associations without finding a mention of legal aid work
in their discussions. The assumption would be warranted that the bar had no interest
in or concern for this great attempt to equalize the administration of justice. In Sep-
tember, 1917, something about legal aid work was made known at the Conference of
Delegates of State and Local Bar Associations, held in conjunction with the American
Bar Association. For the first time in forty years legal aid work, which is national
in scope, was given consideration by a national gathering of lawyers. The resolution,
proposed by Charles A. Boston of the New York Bar and unanimously passed by the
delegates, which has been quoted as the keynote of this chapter, expresses the duty
which the bar owes. Judged by the standard there set, the bar as a whole must be held
to have defaulted on its obligation.

The blame in part attaches to the legal aid societies themselves. Knowing the con-
servatism of the bar and its occupation in other worthy lines of endeavor, the soci-
eties have failed to present their case and to force the issue. Having failed to estab-
lish a central agency of their own, they have had no spokesman for their cause in
the general meetings of the bar. What should be made clear is that the legal aid
organizations represent one of the great legal reform movements of the times. It
ranks with the movements for reorganization of courts and for simplification of pro-
cedure. It needs the same study and requires the same support. There might well be
a section of the American Bar Association on legal aid or, better still, on the equal-

RELATION TO THE BAR 235

ization of the administration of justice, so that all the remedial agencies making for
that end might be included. Were legal aid given the dignity and support which
would attach from such consideration, their work would receive an enormous impetus.
Aided by such prestige, they could more successfully consider with the local associa-
tions how the bonds between the two could be strengthened and the work of bringing
justice to the poor be advanced.

The legal aid organizations need the best leadership which can be obtained. For the
greater part of this guidance they rightly and necessarily turn to the bar. If their
undertaking were a thing apart, they might be left to work out their own salvation or
fail, as the case might be, but it is not. They are dealing with one of the most vex-
ing problems in the law, and one which is immediately related to the entire admin-
istration of justice. The other reforms which are receiving the bar's attention aim to
better our justice; this is concerned with bringing about justice where there has been
none. If the legal aid organizations are to grow and develop along sound lines, if
they are to attain their end completely and expeditiously, they require the highest
wisdom in their supervision and control. As most of the issues which arise are legal in
nature, they need for leaders men of legal training, with a thorough knowledge of
existing defects in the administration of justice and of large vision as to how those
difficulties may best be overcome. The actual case work can be left to the staffs of
attorneys, but the matters of policy involved call for riper experience and more
mature judgment.

Legal aid work in its present state of development gives rise to a host of questions,
some of which have been answered wrongly, many of which are still disputed and
unsolved. What is the line of legal aid jurisdiction, so that it may perform the service
for which it exists and yet refrain from competition with the bar? Should divorce,
criminal, bankruptcy, or personal injury cases be refused? Should fees be charged
and, if so, to what extent and under what method? How far should the societies
themselves pay court costs where clients are destitute and their cases pressing? What
legislation should be advocated? Should the societies advertise in order that the thou-
sands who may need their assistance may know of their existence? Are they warranted
in exerting their influence in the election or appointment of officials to positions
which are of great importance in their work, such as marshals, members of industrial
accident commissions, and judges of the lower courts?

In the future development of the work more intricate questions, involving rela-
tionships with other bodies and fundamental matters of policy, are bound to arise.
They are now on the horizon, if indeed they are not already here. Should the socie-
ties ally themselves with the law schools to establish the legal clinic and how may
that be done? Ought they to try to incorporate within themselves the existing public
defender offices and to establish criminal departments where no one is doing that
work? How far should the organizations urge conciliation and arbitration as methods
of settling disputes superior to those now employed? Is it desirable that they follow

236 LEGAL AID ORGANIZATIONS

the ideas presented by the Labor Secretariat and the Ford Legal Aid Bureau, and
undertake to do certain types of legal work for labor unions and employers? To what
extent must the local societies surrender their control and become merged in one
federal or central organization? How far is the small claims court a better method
of securing justice in thousands of the cases which the legal aid organizations now
care for themselves, and may they not best promote their own interests by urging the
creation of such courts? Perhaps the supreme question of all is, Should the societies
plan ultimately to become governmental agencies, as state controlled bureaus or as
a department of the administration of justice?

It requires no intimate knowledge of legal aid work to appreciate that the wise
settlement of such issues can be had only if the best intelligence is directed to them.
Increasingly the bar must supply some of its best members for the positions of lead-
ership or the whole movement will fail of its high purpose and possibilities. Only
by steady, persistent, and intelligent guidance of the highest order will the work be
reduced to a science, its proper place in our legal institutions be secured, and its
development into a comprehensive national agency for the equalization of the admin-
istration of justice be obtained. If the bar is unable or unwilling to grant this lead-
ership, the legal aid movement will retrogress, decay, and fall into disrepute. What
is to-day our fairest hope as the solution for the existing denial of justice will be lost.

There are ample indications that lack or laxity of proper control by the bar will
bring on these results. In Bridgeport inattention and indifference permitted an attor-
ney to take over the legal aid work, to use it as a means of self-advertisement, and
so to conduct its affairs that he was later questioned about the expenditure of trust
funds and left the city. Shortly thereafter Bridgeport became a centre of munitions
manufacturing and grew into a vast industrial city. It needs legal aid work badly
and it has none. The task of establishing it is now rendered doubly difficult, and it
will be obliged to encounter an atmosphere of distrust not only from lawyers but
from those whom it will seek to help. The Newark organization, though to-day doing
a fine work, has labored under a heavy handicap owing to a prejudice against it
resulting from a course of conduct by an earlier attorney which would have been
impossible under decent supervision. For a number of years before the present Soci-
ety was established in San Francisco, the local bar permitted an attorney to hold
himself out as a legal aid society for purposes of private gain. In New Orleans, and
even more strikingly in Detroit, as we have already seen, bar associations have paid
so little attention to the work that it has been unable to advance and remains wholly
inadequate to cope with the need of the poor for legal assistance in those cities.

About a third of the societies have boards of directors, consisting mainly of
lawyers, who have rendered admirable and faithful service. These are the organiza-
tions which have gone steadily ahead, which have been brought up to a high state
of efficiency, and which lead in the development of legal aid work throughout the
country. Satisfactory as this present leadership is, there is no guarantee of its continu-

RELATION TO THE BAR 237

ance. When these men die or resign there is no reasonable certainty that worthy suc-
cessors can be found. Collectively the bar is perpetual, and in its associations it has
continued an uninterrupted existence. Were the bar associations to have active super-
visory committees on legal aid work, an element of permanence could be secured.1
It would be a task of such a committee to instill into the minds of all lawyers a more
lively interest in the work, and it could be called upon to find in the profession and
to draft for positions of leadership as the need arose the best qualified men in its
membership. Such a supervision was contemplated by the resolution of the Confer-
ence of the Delegates of State and Local Bar Associations. In all probability it will
first be acted upon in New York, where the Legal Aid Society has requested and
the Association of the Bar of the City of New York has appointed a special com-
mitttee to enquire into the needs of legal aid work.

§ 4
The legal aid organizations should find their chief financial resource in the member-
ship of the bar.2 They ought not to be compelled to solicit contributions from the
. , general public until they can truthfully state to that public that the bar
has done its appropriate share. It is common knowledge that the bar as
"j a profession is not considered charitable. The contrast with the med-

ical profession is frequently drawn. It is asserted with much truth that
the great surgeon, giving a part of every day to visitations in the hospitals, and
performing the most serious operations for the poor without charge, has no coun-
terpart among lawyers. Until the legal aid society became established there was an
unfairness in the criticism because there was no way in which the average lawyer
could render this public service. The poor clients never came to his office and there was
no place where he could find them. As law is practised, it would be well-nigh impos-
sible for a lawyer to set aside an hour or two a day for charity cases. Even if he could,
its desirability would be doubtful, for it involves an unnecessary loss of time and
waste of efficiency. The bar can most effectively render its charitable service in cooper-
ation with the legal aid societies by enabling them to become powerful, well-equipped,
and well-manned organizations.

The appeal of the legal aid societies to the bar rests not only on this charity basis,
but may also properly be put on a basis of services rendered. It is the fact that the
organizations are performing for the bar its duty to the poor. To do this they are
spending money, and by their work they are leaving the lawyers free to devote them-
selves to the cases of paying clients. If the members of the bar are to have the legal
aid organizations perform a duty which by law and ethics is primarily their own obli-
gation, then they may fairly be called upon to meet the expenses necessarily incurred
by the societies in doing that work.

1 Cf. Holls: The Legal Aid Society, 8 Charities Rev. (1898) 15, 21. 2 11 N. Y. Legal Aid Rev. No. 3, p. 2.

238

LEGAL AID ORGANIZATIONS

Such financial support the bar has not given. The growth of legal aid work has been
made possible by laymen and not lawyers. That the societies have found it less diffi-
cult to interest and to get subscriptions from the public than from the bar indicates
a condition which is not healthy, and which is discreditable to lawyers in general.
Precisely what the bar has done may be seen by examining the income figures of some
of the larger legal aid societies for the year 1916. In the following table the subscrib-
ers and subscriptions are divided as between laymen and lawyers, and it appears that
six societies in the largest cities of the country, with an aggregate income of sixty
thousand dollars, received only twenty thousand dollars from lawyers.

City

Total Subscriptions

No.

Amount

Boston

249

$5,789.00

Buffalo

157

1,524.00

Chicago

520*

14,870.25

Newark

167

1,513.00

New York

913

32,803.05

Philadelphia

432

3,156.00

From Laymen

No.
122
106
446

86
489
387

Amount
$2,434.00
974.00
10,683.25

1,133.50
21,537.05

2,835.00

No.

127

424

From Lawyers

Amount

$3,355.00

550.00

4,187.00

379.50

11,266.00

321.00

The proportionate part of the expense borne by the bar appears from the following
table, which gives the percentage of the society's total membership who are lawyers,
and the percentage of the total income given by lawyers.

Percentage Borne by Lawyers
in Number in Amount

City

Boston

Buffalo

Chicago

Newark

New York

Philadelphia

These figures show what a limited number of attorneys have done. What the bar
as a whole has not done is disclosed by an examination of what proportion of the bar
in these respective cities gives anything at all to the legal aid work. The following
table states the total membership of the bar in these six cities according to the 1910
Census and the number which support legal aid work.

51.0%

58.0%

32.4

36.0

14.2

28.1

48.0

25.0

46.4

34.3

10.4

10.1

City

Number of Lawyers

Number of Lawyers
Supporting Legal Aid

Per cent of Bar
Supporting Legal Aid

Boston

1,360

127

9.3%

Buffalo

714

7.1

Chicago

3.896

1.9

Newark

390

23.0

New York

10,661

424

3.9

Philadelphia

1,843

2.4

These figures, which will probably come as a shock to the public-spirited portion
of the bar, are not altered or bettered by any donations from the bar in its collective

RELATION TO THE BAR 239

capacity. An examination of all financial reports for 1916 shows only two such in-
stances of support — one in Detroit, where the entire budget of the Society consists
of a five hundred dollar appropriation from the Bar Association, and one in Rich-
mond, where after a sharp debate and with much opposition, the Bar Association
voted two hundred dollars for the society just starting in that city. In 1917 the
Rochester Bar Association gave one hundred dollars to the local Legal Aid Bureau.1
It is fair to add that the new organizations in Jersey City and San Francisco have
had the greater part of their expenses, which are still small, defrayed by individual
lawyers.

When these facts were shown to the Conference of Bar Association delegates, and
after a pointed statement by Moorfield Storey, the Conference voted to add to its
original resolution on legal aid work a clause " that attorneys generally be urged to
give such societies their moral and financial support." 2

What the bar could do by its concerted action may be suggested by a simple com-
putation. We have earlier estimated that if the legal aid organizations in the cities
where they now exist are to meet completely the need for legal assistance, they must
extend their work three and a half times. This would mean an annual expense of not
more than $584,500. We know that organizations should be established in thirty-
seven additional cities. These are nearly all places with populations of between one
hundred thousand and two hundred thousand persons, and in a city of this size an
adequate legal aid organization can be maintained for $2000. For extension into new
cities, therefore, we should add $74,000. This would amount to a total annual national
legal aid budget of $658,500. This income could be raised if every member of the
bar in the United States would give, either directly or through his bar association,
to legal aid work in satisfaction of his obligation to the poor about five dollars. There
is nothing unreasonable in such a proposition. Even assuming that about half of the
bar cannot afford that amount or never can be made to feel their responsibility, the
annual expense to each lawyer in the remaining half would be only about ten dollars.

In other words, the American bar has it easily within its power to permit legal aid
work to develop to its natural completion, to perform the full measure of the respon-
sibility which rests on it as a profession, and thereby to put to an end the existing
denial of justice to the poor in the United States.

On whether in the years to come, now that the Conference of Delegates of State
and Local Bar Associations has given clear expression to the bar's duty, the legal
aid societies receive the unstinted support of the whole bar will depend in large mea-
sure— on this more than on anything else — the future of legal aid work.

1 Rochester L. A. R. for 1917, page 16. 2 3 Am. Bar Ass'n Journal, 697.

Chapter XXV
A MORE EQUAL ADMINISTRATION OF JUSTICE

Equal and exact justice has been the passionate demand of the hu-
man soul since man has wronged his fellow man ; it has been the dream of
the philosopher, the aim of the lawgiver, the endeavor of the judge, the
ultimate test of every government and every civilization. Chief Justice
Winslow of the Supreme Court of Wisconsin.*

§ 1

WE can end the existing denial of justice to the poor if we can secure an ad-
ministration of justice which shall be accessible to every person no matter
how humble, and which shall be adjusted so carefully to the needs of the present
day world that it cannot be dislocated, or the evenness of its oper-
ation be disturbed, by the fact of poverty.

The constructive methods which will enable our judicial institu-
tions to realize their ideal are clear, first, because we know the precise
difficulties to be remedied, and second, because there are already in existence many
agencies definitely designed to obviate or overcome these difficulties and which, with
proper development and expansion, can be made wholly successful. Of these the great-
est is the already formidable group of legal aid organizations. They are, indeed, the
key to the solution of the whole problem, for if we can speedily give them the resources
which they need and deserve, they will move forward and become the instrument
through which we can attain the desired end. Properly equipped, they will provide
the necessary stimulus, they will furnish the requisite leadership, and they will devise
the concrete detailed working plans and carry them through to completion.

In the existing machinery of justice there are three defects, which in their practi-
cal results destroy the impartiality of the administration of justice and thereby make
impossible that absolute equality before the law which the ideal of democracy de-
mands, which our form of government was designed to secure, and which it is try-
ing to guarantee through a fair and sound substantive law. The first difficulty is that
the machinery often moves so slowly, or can be made to move so slowly, that wholly
unwarranted delays occur to rob the protection and redress vouchsafed by law of
much of its efficacy and value. The second difficulty is that the wheels of justice can-
not be set in motion simply by a complaint based on the commission of a wrong, but
require, in addition, a certain amount of financial lubrication in the form of pay-
ments to the courts for costs and fees. If persons, because they are poor, are unable
to satisfy this requirement, they are debarred from seeking redress, the whole law is
powerless to afford its intended protection, and this is so even where poverty is the
result of the very wrong which renders necessary the appeal to the processes of the law.

1 From an Address delivered April 25, 1912, before the Northwestern University Law School ; quoted in 4 Journal of
Criminal Law and Criminology (1914), 660.

A MORE EQUAL JUSTICE 241

Though delays and costs have caused, and until eliminated will continue to cause,
much injustice to the poor, they are only superficial defects in the technical struc-
ture of our legal institutions. Where intelligent rearrangements, suiting the admin-
istration of justice to the conditions of life which it is intended to control, have been
made, as in the small claims courts, both difficulties have been successfully overcome.
Complete solutions of general application are contained in the definite plans, now
making headway, for the reorganization of courts and the simplification of procedure.
By allying themselves with these great movements, the legal aid organizations can
most speedily and effectively make justice prompt in all matters, summary in certain
types of cases where quick relief is the only relief, inexpensive, and free in those
instances where equality of justice can be had only by freedom of justice. Organ-
ized legal aid, in the capacity of a coordinated national undertaking, should work
in close cooperation with such national agencies as the American Judicature Society
and the American Bar Association Special Committee to Suggest Remedies and
Formulate Laws to Prevent Delay and Unnecessary Cost in Litigation; and the
local societies should join with the proper committees of local bar associations in all
their activities along these lines. In this way they can best present the particular
difficulties which they know, and can see to it that in the general plans for the bet-
terment of the administration of justice ample provision is made to secure a form
of structure and type of machinery which will be able to guarantee equality before
the law to the poor.

The third difficulty results from the trilemma that the machinery of justice can
be operated only through attorneys, that attorneys must be paid for their services,
and that the poor are unable to pay for such services. This is the great, the inher-
ent and fundamental difficulty — inherent because our legal institutions were framed
with the intention that trained advocates should be employed, and fundamental in
the sense that no amount of reorganization or simplification, short of a complete
overturn of the whole structure, can entirely remove the necessity for the attorney.
This is a difficulty rather than a defect, for in the main it is as undesirable as it is
impossible that the proper functions of the lawyer in the administration of justice
should be altogether eliminated. This problem differs radically from that relating
to delays or costs, and calls for an entirely different solution. It is not well recognized
or generally appreciated, and there are no definite movements or organizations which
offer opportunities for alliances.

The task of the legal aid organizations is to present with all possible clearness this
difficulty in its full force, to draw to themselves the interest and cooperation of
judges, bar associations, and others concerned with the perfecting of justice, and to
devote themselves patiently and unremittingly to a study of those agencies and
methods which may be made to serve toward this end. There are now in existence three
great agencies, operating in as many fields of law, illustrating two distinct plans for
overcoming this obstacle, which have passed through the experimental stage so that

242 LEGAL AID ORGANIZATIONS

immediate reliance may be placed on them. These are the small claims courts, the
domestic relations courts, and the industrial accident commissions, which are so con-
stituted and so operate that in the average small claim, the average complaint for
non-support, and the average case of an employee injured at work the employment
of counsel is unnecessary.

This is accomplished in the small claims court by the segregation of simple cases
involving small amounts in one court, where the proceedings are without technicali-
ties or formal rules so that there is no need for the performance of the attorney's
function. These courts by virtue of their greater powers can deal with most small
matters sounding in debt or contract far more effectively than can the legal aid socie-
ties. Organized legal aid, therefore, should everywhere advocate the establishment of
courts of this type. If it can secure small claims branches of the municipal courts in
all large cities, it will automatically obviate the difficulty of attorneys' fees, and inci-
dentally the defects of delays and costs, and gain for the poor an entirely equal ad-
ministration of a branch of the law which controls a very great number of the con-
troversies to which they are party. The legal aid organizations are the natural bodies
to undertake the development of the small claims court because they are in a position
to understand its efficiency; to appreciate why it needs as complementary functions
power to order instalment payments of judgments, control ejectment proceedings, act
as trustee for debtors, and employ conciliation; and also to detect the point at which
the method becomes unworkable and where the attorney again becomes necessary.

The domestic relations courts, as to most of the cases of desertion and non-support
of wives and children which are now within their jurisdiction, have successfully met
the difficulty of the expense of counsel by limiting the need for his services through
standardization of forms and simplification of procedure, and by maintaining an ad-
ministrative department of probation officers who perform the remaining necessary
parts of the attorney's function. Such courts exist in the largest cities and in most
of the large cities. They are unquestionably empowered and equipped to secure better
redress than are the legal aid societies. The question for organized legal aid is how
far they should attempt to have included within the jurisdiction of the domestic
relations courts the kindred matters of divorce, separation, illegitimacy, guardian-
ship, and adoption. This is debatable ground; it may well prove that in libels for
divorce attorneys are indispensable. The experiment of this widened jurisdiction, in
which the criminal processes and conciliation will be at the court's disposal, ought
to be made. On the inside the judges can watch its operation; on the outside there
is no organization better situated to detect any breakdown, or to ascertain the de-
sirable limits of any such jurisdiction, than the legal aid society. These courts are as
successful in domestic disputes as the small claims courts are in their field. In so far
as the legal aid societies can secure their wise extension, to that extent will another
great category of the cases of the poor be placed under an administration of justice

A MORE EQUAL JUSTICE 243

which will be accessible and able to operate impartially in fact because free of the
difficulties which have hitherto destroyed equality.

The industrial accident commissions, aided by a simplification of the substantive
law on points of liability and damages, have erected an administrative machinery
which accurately and quickly adjusts and disposes of the larger proportion of the
cases of injured workmen which come within their jurisdiction. Such commissions
now exist in nearly all states. The question for the legal aid organizations in this
connection is not one of territorial expansion, but one of how far this new adminis-
trative method of securing justice can be extended into other departments of law.
The automatic settlement of disputes by supervised agreements instead of through
the traditional channels of judicial litigation unquestionably achieves an entire free-
dom and equality of justice. The method is easily capable of application to cases of
interstate employees, seamen, and with some modifications to passengers on railroads
and street railways. There are great difficulties in the way of its extension to cases
where there is no contractual or other preexisting legal relationship between the
parties, as to the pedestrian run over by an automobile, or to the driver of a team who
has a collision with a street car. But to the extent that it can be carried, it will serve
to eliminate the inequalities of the traditional system, and its proper extension is
therefore a matter of immediate concern to legal aid organizations.

At the same time the legal aid societies must bear in mind that there is a fixed
point at which this administrative method breaks down. As to the cases which give
rise to bona fide contests on law or facts, the administrative method, though it has
developed some points of superiority, differs only in a superficial way from the tra-
ditional methods of litigation in the courts and is subject to the same limitations.
There is the same need for the attorney and the same difficulty presented by the
inability of the poor to pay for attorney's services. In all appeals this difficulty is
accentuated. Here organized legal aid should play its part by supplying attorneys
to all injured persons who are not able to retain their own attorneys. The ability of
applicants to engage their own counsel should be determined in these as in any other
cases, — by the fact of poverty and not by the speculative value of the claim. If the
societies can thus supplement the administrative machinery, they will protect the
community, the bar, and the courts from a recurrence of the dangers and iniquities
of the contingent fee system.

There are other agencies and methods which cannot be immediately relied on, but
which may, under intelligent study and guidance, develop into formidable instruments
for the equalizing of the administration of justice. Conciliation and arbitration as
judicial functions are still new and untried. How far administrative officials, partic-
ularly those empowered to lend their assistance in litigation, can be utilized to secure
equal rights for the poor is a consideration involving many elements of doubt. Of
these matters conciliation probably contains the greatest possibilities, but they all
warrant close and sympathetic observation and the results of their experiments should

244 LEGAL AID ORGANIZATIONS

be made known to the legal world. In such work the legal aid organizations may well
play an important, if not a leading part. They have a direct interest, and they are
in a position to see whether these agencies and methods perform in fact the promise
which in theory they contain. New suggestions and proposals will steadily arise which
in their turn will require this same observation and report.

In these ways the legal aid organizations can promote the necessary reconstruc-
tion of the administration of justice and thereby scientifically eliminate so much of
the denial of justice to the poor as is caused by gaps, or flaws, or outworn parts, or
imperfect adjustments in the organization of our administration of justice.

They must go further. In vast tracts of the civil law and in all of the criminal law
relating to the more serious crimes, equality in the administration of justice can be
had only by supplying attorneys to the poor. In civil matters this has always been
the function of the legal aid societies; in criminal affairs it is now the function of
the public defenders. This part of their task is well known to the organizations. The
work of the public defenders must be carried on in all cities, and it is preferable that
it should be done in conjunction with, and as a part of, the legal aid work. The legal
aid organizations must extend themselves into all of the large cities, and must triple
their staffs and undertake a threefold increase of their work. If these things can be
done, that part of the denial of justice which is traceable solely to the inability of the
poor to employ counsel will be eliminated, and it is only in this way that the great
difficulty of the expense of counsel will be completely overcome.

§ 2
At the present time the legal aid organizations in the United States are equipped
to do none of these things. They will be able to continue to care for a certain num-
ber of individual cases, but that is not enough. They will either go
ore jji- forwar(j or backwarcl. Either they will become the best instrumen-
cien ega tality for the equalization of American justice, or they will fail, and

be discarded, and some other plan will be utilized. Because of the work
they have accomplished, the wealth of their experience, and the excellence of their
record, it is in every way desirable that it should be made possible for them to succeed.
For the success of organized legal aid work there are three imperative requisites —
better leadership, a sound financial foundation, and the merger of all the individual
societies and bureaus and public defender offices into a definite union with centralized
responsibility and authority.

Of these three cardinal needs the greatest is leadership, for it may fairly be assumed
that under intelligent guidance proper financing would be secured and a central legal
aid bureau would be established. To ensure the wise direction and development of
organized legal aid work there are needed for the boards of directors and executive
committees men of high calibre, endowed with both vision and courage, who fairly

A MORE EQUAL JUSTICE 245

represent the various elements in the community who are concerned in this work. Such
groups are the judges, the charities, the churches, the employers, the labor unions,
the law schools, and above all the bar, for in this undertaking the members of the
bar have the greatest responsibility. The societies cannot be expected to evolve the
necessary leaders from within themselves. It is not only natural but inevitable that
they should look to the bar. It is the duty and the privilege of the bar associations,
which most nearly represent the bar in its collective capacity, to provide from among
their own leaders a number of properly qualified lawyers who can constitute the nu-
cleus of legal aid leadership and add to themselves persons representing other groups
in interest. This alliance between legal aid work and the bar should reach from top
to bottom. As a local undertaking it should have the supervision and support of the
local bar associations, and as a national movement it should have the supervision and
support of the American Bar Association.

The acute financial crisis which the legal aid societies face need not always remain
a stumbling-block in the path of their development. If the pressing demands of the
present were squarely met, arrangements could unquestionably be made which would
care for the future. Legal aid work is not expensive, its needs are modest, but at the
present time it is denied even this small support. If the organizations were given a
clear track for a few years and provided with the necessary resources during this in-
tervening period, they could rid themselves of the handicaps under which they now
struggle and attain such a position of responsibility and strength that they would
earn and attract their necessary income from available sources. The shoulders of the
bar are broad enough to carry the whole load so easily that the individual member
would scarcely feel its weight. If the work becomes, as it ought to become, a part of
the bar's work, if the situation is made clear to the bar associations so that they feel
their responsibility, there will be no great difficulty in securing small subscriptions
from lawyers generally, made as a matter of professional duty, which in the aggregate
will furnish the legal aid organizations with the greater part of the funds that they
require. In addition there are many members of the community who are able and will-
ing to give generously for this object, which they regard as a worthy charity. If the
salient features of the work were presented to the public in an intelligible and sym-
pathetic form, the number of donors could be materially increased. Once the legal
aid societies obtain proper leadership and are given an opportunity for development,
there is every reason to believe that finances will cease to constitute a menace always
threatening their existence.

The need for some union of legal aid organizations that will nationalize the work
and provide a central responsibility and authority is obvious. In their National Alli-
ance the societies have erected a shell without substance. For the future, the work is
too great to be conducted in a slipshod way, and its extension into new fields is too
important to be left to a hit-or-miss policy. The combined experience of the societies
must be assembled and a technique for the conduct of the work developed. A standard

246 LEGAL AID ORGANIZATIONS

system of records and accounts must be devised and then installed. Matters of policy
should become uniform as rapidly as possible. A clearing house, with power of super-
vision, is necessary for a free transference of cases throughout the country. Some
initiative must be manifested in establishing societies where they are needed. There
must be some central body authorized to represent and speak for the organized legal
aid movement in the councils of the bar, at the meetings of the charities, and at the
law school conferences, and to cooperate with such undertakings as the American
Judicature Society. If there is to be any intelligent development in cooperation with
the other remedial agencies, there must be a central bureau to disseminate informa-
tion to all the legal aid organizations as to how such agencies operate, what their
advantages are, and wherein they are limited. The present state of affairs, in which no
society except the local society understands how small claims are cared for in Cleve-
land or wages collected in Massachusetts, cannot be allowed to continue. The admin-
istration of justice is a serious business, and its reconstruction requires infinite pains,
well-considered suggestions, and judgment of the highest order. Because they have
undertaken the responsibility of championing the cause of the poor, the legal aid
organizations are vitally concerned in any reorganization, and they can, if they will,
make contributions of information that are invaluable because they are not obtain-
able from any other source. If their voice is to be heard, as it has not been heard in the
past, and if their opinions are to carry weight, they must present a united front, hav-
ing clearly formulated their aims, and speak with singleness of mind to a definite and
agreed purpose.

Inasmuch as the legal aid organizations are rendering an essential public service, it

is likely that ultimately their work will pass under public control. This fact should

never be forgotten by those who are, or may become, responsible for

°7 r 7. . . the future of organized legal aid, and they will do well to shape their
wider Judicial , ... ... ° , . • mu j x. u a. xi_-

_, j plans with this end in view. 1 here is no need to hasten this process

of transferring the responsibility to the state, the ideas which must

precede it are imperceptibly but steadily taking possession of men's minds, and the

change will come about in its own good time. It is always difficult, particularly for

those in the midst of a movement, to gauge progress by present indications, but

a glance backward over the road traveled gives a clue as to what is taking place.

When the attorney for the first public legal aid bureau, in 1911, predicted that in

ten years there would be a dozen public organizations,1 his hearers, who were the best

informed persons in the United States on legal aid work, were unable to give full

credence to the statement. Yet within five years eight such bureaus were established.

1 Report of Proceedings of the First Conference of Legal Aid Societies, page 41.

A MORE EQUAL JUSTICE 247

What will be the situation at the end of another ten years no one can foretell, but
the tendency is none the less perfectly clear.

The task of the private organizations will be to bring legal aid work up to the
highest possible point of efficiency, so that when the time comes they may surrender
into public hands a definite undertaking which has passed beyond the experimental
stage, with its guiding principles well established, and with a well-developed tech-
nique for the conduct of its work. They must also bring their experience to bear in
order that this tendency toward public control may not go forward blindly, but
may be given intelligent direction.

Their experience makes it perfectly clear that legal aid work is of a piece with the
administration of justice, and that it has no logical connection with municipal gov-
ernment. Primarily for this reason, and also because they know that there is danger
in entrusting this service to city officials, the legal aid societies will do well to con-
sider if their work may not most properly, and most safely, be placed under judicial
control. It is entirely possible that into the comprehensive plans for the reshaping of
our judicial organization, which are now going forward, there might be incorporated
a definite scheme for judicial control of legal aid work.1 The accepted principle under-
lying the present proposals for reorganization of courts and simplification of proced-
ure is that the judges must be our experts in justice; they must be charged with the
responsibility and given the power to make the machinery of justice operate smoothly,
and efficiently, and economically. It is just as important that they be made respon-
sible and entrusted with power so that they may see to it that the administration
of justice is accessible to all and operates equally. It involves nothing more than an
extension of the work done by clerks of small claims courts under judicial direction,
or by probation officers who are amenable to judicial control, or by the administra-
tive departments of the industrial accident commissions. The author of the Chicago
Municipal Court Act, which was the first law to put the theory of judicial respon-
sibility for the administration of justice into practice, contemplated a "Bureau of
Justice," under judicial control, which should give to poor persons the services of
attorneys in both civil and criminal cases.2 This is precisely what has been effected
in England by the Supreme Court rules of 1913. It is akin to the method by which
legal aid work has for years been carried on in France, Scotland, and Belgium.

The rules in France, which regulate "LAssistance Judiciare Gratuite," prescribe

1 Cf. Resolution introduced in 1917 before the Massachusetts Constitutional Convention (Convention, No. 8), which
read:

"To the end that Article XI of Part I of the constitution maybe given full force and effect throughout the common-
wealth, the justices of the supreme judicial court may, in their discretion, make rules of court or take any other
action designed to guarantee that no subject of the commonwealth shall, because of poverty, be denied certain ac-
cess to the courts, or proper representation therein, in any proceeding, whether civil or criminal.

"It is hereby expressly declared that the above conferred power extends to provisions concerning the payment of
court costs, the assignment of counsel, the creation, control and supervision of organizations or bureaus to render
legal aid and assistance to poor persons, and to the expenditure of such sums of money as may be appropriated by
the legislature for these purposes.

"The authority hereby entrusted to the justices of the supreme judicial court may, by them, be delegated in whole
or part to the justices of any other court."

2 Hiram T. Gilbert: Practice hi the Municipal Court of Chicago (1906), pages 546 ct seq.

248 LEGAL AID ORGANIZATIONS

that there be attached to each court of justice a quasi-tribunal of representatives
of the legal corporations who pass on the poverty of all applicants for free judicial
legal aid and also on the merits of the cases which they present. If the applicant is
found to be a poor person with a meritorious claim, he is thereupon entitled to free
legal assistance. The law corporations designate from among their membership law-
yers who are to be called upon by the court for this purpose. Students share in the
work, and it is a condition of their admission to the bar that during the last period
of their training they shall have served in connection with the Bureau that regulates
this judicial assistance. Expenses of litigation, such as witness fees and cost of print-
ing, are borne by the public treasury. The system in Belgium and other continental
countries is analogous, and by a Convention on Civil Procedure concluded at The
Hague it was provided that the citizens of each country should be entitled to receive
in each other country the benefits of this judicial legal assistance.1

The Scottish system, which traces its history back to an Act of 1424,2 operates as
follows : A number of solicitors are each year selected by their associations to act as
agents for the poor. An applicant for legal assistance presents to such an agent cer-
tificates from his parish as to the fact of his poverty. The agent draws and presents
a petition for leave to sue in forma pauperis to a tribunal of four attorneys, who
pass upon the applicant's right to sue in that manner. If admitted to the Poor Rolls
and given permission to sue without payment of costs, the person's case is entered,
and the judge assigns as his representative a counsel from the list appointed by the
Faculty of Advocates.3

The method which now obtains in England is an adaptation of these French and
Scottish systems, which have much in common, worked out by judges of the Supreme
Court after conferences with the bar, and promulgated by rules dated April 28, 1913,
which took effect June 9, 1914.4 Persons apply or write to the prescribed officers
who are attached to each division of the High Court and receive the proper form of
application. Before permission to sue without payment of costs or attorney's fees is
granted, the court must be satisfied that the applicant has a reasonable cause of ac-
tion or defence, and that his means, exclusive of wearing apparel, household goods,
tools of trade, and the subject-matter of the action,5 do not exceed the sum of £50,
or in special circumstances £100. To ascertain these facts, the case is sent to a soli-
citor for his examination and report. Lists of solicitors who have volunteered to
accept assignments are kept, and in addition the court may assign any solicitor it

1 Norman Bentwick: Legal Aid for tlie Poor, 105 Contemporary Review (1914), 659, 562; Thery: French Legal Assist-
ance for the Poor, 1 International Law Notes (1916), No. 1, p. 12.

2 135 Law Times (1913), 247.

3 An excellent description of this system in Scotland is contained in 47 Law Journal, 49.

* All rules, together with forms, which set out this system in full are contained in the 1914 Rule Book, and are listed
as Order 16, IV, §§ 22-Sld. The best account of what has been done under these rules is to be found in the statement
by W. F. A. Archibald, Chairman of the London Prescribed Officers, published in full in the Law Times for March
18, 1916, and in part in 1 International Law Notes, No. 4 (1916), p. 56.

6 It is to be noted that no person is denied relief by the court, as the legal aid societies in the United States have
denied their assistance, on any theory that the person can secure his own attorney by arranging for a contingent fee.

A MORE EQUAL JUSTICE 249

may wish. If the report is favorable, the judge then assigns a solicitor and barrister to
prepare and present the case before the court for trial. There are lists of counsel who
have volunteered their services, but the court is free to assign the case to any member
of the bar. Persons admitted to sue or defend under these rules are not required to
pay court costs and are not liable for the fees of the opposing party. They are pro-
hibited from paying fees to solicitors and counsel for their services, and if members
of the bar seek to obtain remuneration from such clients, they are punishable for
contempt of court. Poor persons, if successful, may be awarded costs, and the court
may fix an attorney's fee out of such costs, or out of the recovery if it is substantial.
The rules contemplated a Treasury grant to defray the incidental expenses of such
litigation, but the grant was not made owing to the immediate advent of war.

None of these systems is complete. Legal aid work, as it is organized in America,
possesses many points of superiority. These other systems do, however, serve as excel-
lent precedents, and they add to the fund of information from which sound plans may
be formulated for placing legal aid work under judicial control and thereby making
it an integral part of the administration of justice.

§4

These suggested future developments are all practical and capable of achievement.
Once these matters are given proper presentation, the loyal support of the bar, the
_ , . assistance of the courts, and the sustaining interest of the public may be
confidently expected. The ends which they seek to attain are of direct
concern not only to the fair administration of justice, but to the well-being of the
nation. It is of high importance that such developments be encouraged and supported,
not for the sake of the legal aid organizations themselves, — they of themselves are
nothing, — but because in them, with all their faults and weaknesses, is contained our
best immediate hope for a realization of our ideal of such an equal administration of
the laws that denial of justice on account of poverty shall forever be made impossible
in America.

!.*'/

APPENDIX

NOTE TO STATISTICAL TABLES

Table I. Cases of Legal Aid Organizations

Table II. Amounts Collected for Clients by Legal Aid Organizations

Table III. Expenses of Legal Aid Organizations

NOTE TO STATISTICAL TABLES

IN the following three tables are contained the basic statistical records of legal aid
work — the number of cases received by each organization, the sums of money col-
lected for their clients by each organization, and the amounts expended by each or-
ganization in the conduct of its work. No table showing the income of the organi-
zations is necessary for, as legal aid work is now financed, the organizations each
year spend all that they receive, so that the income and expense figures are practically
identical.

Not all of the desired information is available. In order to show to what extent
the tables are incomplete, there are placed at the right hand side of each table two
columns in which are noted the total number of organizations in existence each year
and the number of organizations whose records are known and are contained within
the table for that year. As the figures which are unavailable are those of the smaller
societies, they would, if they were known and included, serve to increase the totals
presented in the tables only in a slight degree.

These figures may be regarded as minimum figures. All "estimates," so far as they
could be detected, have been excluded. The tables substantially underestimate the
work in two particulars. The collection figures represent little more than cash sums
secured and paid over to clients. There are many cases in which the debtor, after being
called to account or sued by the legal aid society, pays the client directly. In most
instances these recoveries, although properly to be credited to the society as the result
of its work, cannot be known. Further, many cases result not in a cash payment, but
in an order for weekly payments, as in husband and wife, support of children, illegiti-
macy, and workmen's compensation cases. The exact amounts paid under such orders,
which have been secured by the efforts of the society, are not known and so do not
appear in statements of sums collected for clients. The case figures represent only cases
undertaken for poor persons. They do not include the advice and other work done for
lawyers or social workers. Further, a few organizations list as cases only matters in
which some action is taken, so that these figures do not include cases of poor persons
where advice only was given.

The tables are arranged in cross columns, so that in each instance they show :

1. The work of each organization in each year.

2. The work of all organizations in each year.

3. The total work of each organization.

4. The grand total of all organizations from 1876 to 1916 inclusive.

The fiscal year of a number of the organizations does not conform to the calendar
year. In such instances the work has been listed as of the year which included the
greater number of months of the particular fiscal year. Thus the work done during
a fiscal year running from November 1, 1915, to October 31, 1916, has been placed
in the column of the year 1916. Although this is arbitrary in a way, such an arrange-
ment was necessary to make possible any orderly and definite presentation.

TABLE I : 1876-1916

(a) Annual Number of Cases of Each Legal Aid Organization.
(A) Annual Total Cases of All Organizations.

(a1) Total Cases of All Organizations for 4-1 Years.

Chicago
Levi Aid

1870
1877
1878
1879
1880
1881
1882
1883
1884
1885
1886
1887

1890
1891
1892
1893
1891
1895
1896
1897
1898
1899
1900
1901
1902
1903
1901
1905
1906
1907
1908
1909
1910
1911
1912
1913
1914
1915
_1916
Total I

287

499
687
504

198

305

354

568

664

707

1.085

006

1,107

1,175

1.114

1.041

1,154

1,352

2,229

2.608

2.353 16,637

630
mm
1. 391
1.257
1.516
5,753

1,164
2.407
S.7.S.!
3,523
4,029
4,881
5,006
3,217
4,564
4.087
4.307
4.618
3,755
3.760
3.421
8.625
4.158

159
385
1,145
1.614
1.455
1,347
1,095

2,499
3,284
2.980
2,678
2.290
2,135
2,776
9,085
2,861
3,269
4,200

2,929

4,955

4,990

5,102
6,262
8,442
13,904
15,409
19,121
10,074
10,097
211,691

294

508

689

823

811

1,358

1,478

1,699

2,888

3,124

3,515

4,167

4.747

2,537

4.685

33.270

885
1.179
1,509

459
606
908
1,208
1,158
1,382
1,533
2.435
3.025
5,805
4,948
24.382

914

1.480

607
2,294
4,504
5,929
13,004

2,313

5,409

5.354

8,573

3,199

6,262

10,301

6,202

10,277

5,270

8.848

1,1

1.905
1,065
3,039

7,y.;*

2,140

2,155

212
750
859
1.908
2,122
2,832
3,413
3,400
3,640
3,802
3,906
3,485
3,313
3,500
4,078
5,412
5,541
8.285
7,835
7,027
7,473
5,350
5,602
9,436
14,365
15.880
15,257
18,469
20,277
21,372
23,175
26,399
31,036
30,105
82.419
33,809
87,706
39,189
lfl.4.lil
42,000
41,946

584,831

1,406
1,980
3,801
6,371
5,431
8.993
7.737
7.445
4,824
4,402
7.087
2,581
7,997
11,715
5,788

~M:

701
1,278
1,165
1,422
1,383
1,477
1,818
2,514
8,479
3,874
4,290
4,845

28,757

1,998
1,393

788

.'.1157

1,905
1,895

i i

1.903
J.1SS
2£!2
3.413
3.400
3,640
3,802
3.462
3.870
5.624
7,611
9.316
10.282
10.656
11.199
15,427
16,128
15,017
12.115
12.399
16,189
20,896
23,366
23,544
28,358
34,159
33,352
37.603
42.596
50,944
48,212
52,644
90,950

87.141
109.048
113,719
117,201

1876
1877
1878
1879
188 ■
1831
1882
1883
1884
188S
1886
1887
1888
1889
1890
1891
1892
1893
1894
1895
1896
1897
1898
1899
1900
1901
1902
1903
1904
1905
1906
1907
1908
1909
1910
1911
1912
1913
1914
1915
1916

I.1S8.T00 -j IZATlos3 4

TABLE II : 1870-1010

(n) Annual Amount Collected for Clients by Each Legal Aid Organization in even Dollars.
(A) Annual Total Collections by All Organizations in even Dollars.

(<■) Total Collections by Each Organization in even Dollars.
(</) Total Collections by All Organizations for 41 Years i\ even Dollars.

Table II

Chicago

New York

=
-J
■<

>■

1AM

III

a
0

C
O

3
q

—

be
a
<

a
I

I
Z

■9
^ a,

--. a
; a a

?! gS

0 .5 a

gs£

-
S

a
■0

EL.

5
c
3
en

H
e

Q
En

H =

= a

•"■V.

1876

$1,000

1x71;

1877

5,019

J.01S

1877

1878

8.089

8,089

1878

1879

7.514

7,514

1X79

1880

8,080

8,880

lxxo

1881

9.149

9.140

1881

1XX2

12,460

12,400

1882

1883

17,040

1884

19,062

19,002

1834

1885

17,711

17.711

1885

1886

$277

19,080

10,351

1886

1887

885

16,870

1887

1888

$2,475

3,753

14,624

1888

1889

8,065

i,Vi:i

20,104

S2.708

1XX9

1890

10,658

1,923

34,099

47,580

1890

1891

9,877

864

55,077

65,818

1891

1X9:!

B,DS3

1,991

74,282

88,208

1X92

18B3

6,648

39,955

37,603

1893

1894

2,969

.1.11711

62,624

68,872

1894

1896

4,271

1,785

60,285

00.. Ml

1895

1896

3,639

1.799

71.257

1896

1897

4,000

1,601

72.810

78,480

1x97

1898

2,762

2,287

67,811

72,860

1898

1899

4,325

1,454

68,796

72,575

1899

1900

2,7"4

2,562

96,704

101,070

1900

901

$585

2,715

2,266

78,173

83,739

19111

9112

1,491

4,838

2,313

$15,770

54.855

78,507

19112

L903

2,000

3,890

!,885

59,646

$310

88,781

1903

1904

■1.600

2.741

.1.515

58,665

$1,070

414

71,005

1904

1905

5,917

8,857

$6,548

01,1111

1.649

900

80,020

1905

1906

8,100

7,200

9,794

827

72,833

489

09,040

1900

907

8,888

7,009

10,198

90,286

1,134

120.515

L907

90H

5,700

9,503

23,354

1,908

S0.IH,3

2,000

974

1908

909

7.718

5,954

21,006

lnn,ii7l

1,323

1 16,103

1909

9111

6,080

7,845

28,516

$010

$0,0 Hi

101,724

1 1,948

2,076

,851

1910

911

0,686

8,048

.'.'.in.'

820

8,904

122,838

10,822

$1,000

3,257

185,587

1911

B12

0.131

17,200

19,740

1,151

10,962

11 -',129

12,164

857

5,046

$1,852

1912

-'1

913

9,989

22,861

26,679

$1,175

2,751

$5,280

10,140

$3,530

1 18,046

7.125

6,191

3,887

$2,672

8,457

$1,429

244,162

LOIS

914

4.005

$1,159

88,066

80,623

1,659

$746

1,202

8,086

$218

7,705

5.707

l 14,885

14.413

6,330

6,676

5,648

$812

4,893

5.006

268,849

1914

916

25,195

$948

1,847

18,528

20,269

>,03ll

$949

669

1,776

6.027

390

6,014

$.'6,273

5,450

3,589

139,327

14,500

10,894

7,073

4,191

000

7,390

5,781

$-110

191B

918

22,808

2,881

410

21,520

32,787

.'.-'71

3,889

1,209

2,580

10.787

'..'3

5,143

23.18,1

$73

$1,892

7,401

$1,049

0.704

$112

128,005

16,537

12,511

$:,,<ni,i

11,286

6,800

689

5,199

6,477

$085

310.199

1916

OTAI.

(120,828

83,820 83,216 $285,501

$269,706

-7.1 tl

$4,838|$2,624| $10,890

$33,030

$931

$55,81 1

fUU.-.ti

$73

-l.Vi.'

$22,088 1 $1,049

$28,788

$112

$2, 43*. 70)1

$93,091

$37,783

$5,063 1 $-14,954

$19,211

$2,40l| $27,701

$18,693

$410

$685

$3,590,081

[ZATIONS 41 VfaHS

TABLE III

(a) Annual Expense of Each Legal Aid Organization in even Dollars.
(6) Annual Total Expense of All Organizations in even Dollars.

1876-1910

((/) Total Expensf. of All Organizations for 41 Years in even Dollars.

Table ///

Chicago

New York

9 .

a
o

Lega

/ Aid

a » ,
|||

a
q

■a
a

>
u

c
o

d
Q

■g
X

>>
U
I

b
•J

v
v
i&

3
cd

it §

Hi
ill

a!
cd

B
z

a
a

a
1

o
BS

3
O

-J

5
c
a
en

a
«

>
a
•J

M
'
M
>•

_= "t

1876

$1,060

1877

1,518

1,519

1878

1,570

1.570

1878

1879

1,816

1,810

1880

2,248

8.846

1880

1881

lf>H

2.622

1881

1882

2,715

8,715

1882

1883

2,838

1883

1884

2,817

1884

1885

8,87(

2.870

1886

$850

2,871

9,820

1886

1887

1,953

3,052

5,005

1887

1888

$8,806

2.783

2,901

8,739

1888

1889

3,771

3,382

3,272

10,485

1889

1890

5,371

3.(186

3,496

11,053

1890

1891

3,058

3.651

5,172

12,761

1891

1892

6.508

3,634

4,881

128

1892

1893

6,184

5,241

11.365

1 393

1891

5,407

3.094

(1,098

14,507

1894

1895

5,192

2,871

6.309

14,312

is:,:,

1896

9.956

2,554

6,940

13,450

1897

3.424

3.357

7.953

1897

1898

1,49!

2,539

7,643

$33

1898

1899

5,551

1.340

10,130

16,039

1900

3, 199

-'.\'l

$1,095

14,524

21,669

1900

1901

$1,263

3.886

3.873

8,883

17,980

29,883

1901

1902

1.648

4.1^7

1.104

2,750

17,307

89,086

1902

1903

1,138

4.71M

2.988

9,000

20,808

33,333

1904

1,400

5,400

2,749

3.450

22,702

2,068

98,820

1904

1905

1.500

4,224

3.000

2,903

1,654

42,794

1906

1.788

7.457

4,600

$1,064

82,116

3,960

2,862

53,347

190G

1907

e,704

8,060

6.606

1,583

98,682

3,001

1,904

68,680

1907

1908

2,169

8.253

7.679

1,409

H,485

3,102

2,137

99, ",31

1908

1909

2,560

8,361

1(1,020

1.864

41,641

5,381

1,685

$658

72.170

1909

1910

2.809

8.091

12,175

2,968

$1,338

30,400

6,1«9

1,713

1,046

76.602

1910

1911

.1,741

12,851

14,518

: 368

500

5,804

43,114

6,740

$5,000

1,846

033

$251

07,250

1911

1912

11,107

4,507

$1,742

19.180

19.850

$492

2,208

.-.mi

5,107

46,194

7,053

7,516

2,293

1,176

619

119,705

1912

1913

800

5,030

2,015

24.826

18,075

1,220

2,603

500

5,283

$4,641

$1 ,824

,5,200

3,703

8,973

2,510

1,024

833

$9,808

$1,175

133,600

1918

1914

!,<H5

5,991

8,158

26.853

22.300

1.238

1,841

$552

500

$2,801

3,808

18,831

2,040

44,140

7,888

0,381

8,344

1,295

688

1,384

160,189

1914

1915

1,010

5.390

2,336

17,599

89,800

1 80S

3.774

*2.430

1,282

B00

8,082

(185

$22

5,111

_M 618

2,281

$1,440

15,609

6,870

10,446

4,316

1.615

980

2,381

1,562

$16

166,701

1915

1916

1,020

6.408

i,S7S

18.318

25.297

1,359

3.210

2.415

1.315

500

4,280

111

364

4,226

21,1911

$2,088

8,435

3.13J

14,648

0,959

11,609

$650

4,437

1,882

$37

1,318

5,857

1,839

$993

181,408

1916

Total

$5,081

$50,232

HO 929

$208,684

.?183,(n,7

$5,518

$24,310

$4,845

$3,089

.■?-... ;.i in

$9,703

$240

fclwi

$32,101

$66,284

$2,088

$9,93o| $4,572

$082,341

$68,884

$53,015

$650

<M,mi\

$9,629

$37

$4,693

$11,041

$5,980

$18

$993

il, 5, 3,733 , |ZAT,ons41 VkARS

5 \"*l

INDEX

u'y

INDEX

Abbott, Lymak, on public duty to provide jus-
tice, 194.
Administration of Justice, see also Court Costs,

Delay, Expense of Lawyers' Services, Fail-
ure of Administration of Justice.
Administrative tribunals' effect on, 83.
Bar's relation to, 227.
Defects in

Cause disparity in rights, 15.

Classification of, 16.

Due to bad machinery, 14.

Expense of lawyers, fundamental, 31.

Not intentional, 15.

Not realized, 16.

Serious nature of, 15.

Summary of, 240.
Defects in criminal field, serious, 114.

Equality not secured, 104.

Influence of the defender, 119, 124.

Political effect, 125.
Early, had simple machinery, 6.

Was inexpensive, 6.
Equality and freedom essential to, 3.
Expense to state of, 23.
Failure to provide lawyers, 33.
Function of, in a democracy, 182.
History of state control over, 180.
Impartiality not attained, 8.
Inadequate, effect of, 5.
Law given life through, 16.
Lawyers supply motive power, 32.
Legal aid organizations' effect on, 133.

Public controlled, effect on, 146.
Legal aid work and, relation between, 106,

128, 180.
Legal aid work part of, 149.
Popular suspicion of, xi.
Remedial agencies' relation to, 38.
Small causes neglected by, 8, 41.
Substantive law and, 5.
Used for extortion, 9.
Vital problem of to-day, 16.
Waste of, increases living cost, 42.
Administration Orders, see English County
Courts.

Administrative Officials
Advice given by, 94.
Definition of term, 94.
Growth of, 98.
Kinds of, 94, 95.
Services in litigation, 95.
Wages collected by, 96.
Massachusetts plan, 96-98.
California plan, 98.

Administrative Tribunals, see also Industrial
Accident Commissions, Interstate Com-
merce Commission, Workmen's Compen-
sation Acts.

In general, 83.

Advantages of, over courts, 91. [94.

Distinguished from administrative officials,

Future development, 91.

Incorporation in judicial system, 91.

Promote equality of justice, 91.

Rise of, 83.

Advertising by legal aid organizations, ques-
tion of, 235.
Agencies, see Remedial Agencies.
Akron Legal Aid Committee, 145, 176, 191,
212.

Started in 1910, 145.
Extent of work, 191.
Pamphlet on law issued, 212.
American Bar Association
Canons of Ethics, 232.
On conciliation, 60.
Report of Special Committee on Preventing

Unnecessary Cost, 20, 241.
Section on legal aid suggested, 234.
Section on equal justice suggested, 235.
Speech of Roscoe Pound before, 7.
Supervision by, of national legal aid work, 245.
American Judicature Society
Conciliation endorsed by, 67.
Procedure reform plans, 19.
On substantive law, 14.

Legal aid organizations should cooperate

with, 199, 241, 246. [139.

Americanization of legal aid by Briesen, 137,

Americanization Program, see also Immigrants.

Retarded by injustice, 9.
Anarchy

And denial of justice, 5.
Caused by denial of justice, 10-12, 182.
Experience of Roosevelt, 11.
Appeals
Court costs in, 27.
Effect of, 27, 206.
California rule, 204.
Cost of, under compensation acts, 85, 89.

Unfairness of, 89.
Delay through, 17, 18.
Number taken from formal and informal

courts, 53.
Reasonable delay in, proper, 18.
Restricted in small claims courts, 45, 46.
Right of, essential, 18.
Rule allowing new trials, 18.

256

INDEX

Arbitration

Commercial bodies, use by, 69.
Conciliation, relation to, 70.
Court's attitude to, 68.

Effect on costs, delays, and expense of law-
yers, 70, 72.
Future of, 72.
Growth of idea, 70.
Judicial arbitration
Beginnings of, 71.
Cleveland rules for, 48.
New York rules for, 55, 71.
Not yet tested, 243.
Legal aid organizations use, 164.
Maritime disputes, 94.
Nature of, 68.

Like small claims court, 71.
Procedural law disregarded, 69.
Rabbis' use of, 71.
Substantive law disregarded, 69.
Submission, form of, defective, 69.
Argentine Republic, Counsel provided in crim-
inal cases, 115.
Assigned Counsel
In general, 100.
In civil cases, 100.

Disuse of procedure, 100.
In England, 102, 249.
In foreign countries, 101, 248.
Unfairness of, 101.
Bill in Connecticut legislature for, 202.
Federal law concerning, 231.
Needed in certain cases, 32, 56.
Statute of Henry VII, 21.
Theory of lawyer's obligation, 230.
Under New Jersey compensation act, 89.
Under Soldiers' Relief Act, 231.
Use of plan by legal aid organizations, 101.
In criminal cases, 103.
Use of plan, 108, 112.
Failure of plan, 103, 112.
Attorneys not paid, 112.
None in lower courts, 108.
Professional assigned counsel, 114.
Defender plan better, 123.
Assignment of Wages
Means of extortion, 9, 10.
Test case on notice, 208.
Legal aid work concerning law of, 201, 202,
205.
Association of the Bar of the City of New

York, see New York City Bar Association.
Assumption of Risk

Origin and effect of doctrine, 14.
Under compensation acts, 87.
Atlanta Legal Aid Society, short life of, 143,
187.

Attorneys, see Lawyers, Expense of Lawyers'

Services.
Austin, Benjamin, on need for defender, 115.

Baker, Newton D., provides counsel to accused

in Cleveland, 125.
Ballantine, Arthur A. , on compensation plan

for passengers, 90.
Baltimore Legal Aid Bureau, 145, 176, 177,
191,201.
Started in 1911, 145.
Extent of work, 191.
Changes illegitimacy law, 201.
Bankruptcy Cases

Court trustee for small, 57.
Rejected by some legal aid organizations, 153.
Bar, see also Bar Associations, Lawyers, Legal
Aid and the Bar.
Aid legal aid organizations, 143, 145.
Distrusted first legal aid, 135.
Knows little of legal aid, 151.
Legal aid should appeal to, 196.
Popular distrust of, 228.
Responsibility for administration of justice,

ix, xiv.
Can end denial of justice, 239.
Standard lowered by contingent fees, 86.
Bar Associations, see also American Bar Asso-
ciation. [248.
Assistance to poor in France and Scotland,
Consider the defender plan, 116.
Duty to lead legal aid, 245.
Duty to support legal aid, 226.
Failure to support legal aid, 174, 238.
Indifference to poor, 37.
Legal aid and preventive law, 217.
Start legal aid work, 140, 141, 144.
Bar Association Legal Aid Societies, see Types

of Legal Aid Organizations.
Belgium, provision for poor persons, 248.
Bernheimer, Charles L., work for arbitration,

69.
Birmingham Legal Aid Society
Failure of, 145, 187.
Bar did not support, 174.
Boards, Industrial Accident, see Industrial

Accident Commissions.
Boards of Health, legal assistance by, 95.
Bonds, see also Straw Bondsmen.
Required as security for costs, 28.
Effect of, 29.
Boston, Charles A., resolution on Legal Aid

Work, 234.
Boston Legal Aid Society, 28, 76, 77, 97, 129,
140, 142, 143, 146, 154-156, 159, 160, 163,
164, 166-168, 173, 176, 191, 195, 201, 209,
210, 213, 216, 223, 238.
Started in 1900, 140.

INDEX

257

Cases of:
Classified, 154.
Sources, 159.
Dispositions, 160.
Cooperation with Children's Aid Society, 223.
Criminal cases refused, 156.
Divorce cases refused, 155.
Extent of work, 191.
Fees

Amount of, 168.
Believes in charging, 167.
Rate charged, 166.
Illegitimacy law changed, 201.
Litigation avoided, 164.
Reference of cases, plan, 163.
Report on preventive law, 216.
Small loans law changed, 201.
Support by bar, 238.
Test cases by, 209, 210.
War service by, 213.
Briefs, expense of, 27.
Briesen, Arthur v.
And Theodore Roosevelt, 10.
Influence on legal aid, 171.
Leadership and vision, 136, 140.
Quoted on

Citizenship, 218.
Conciliation, 63.
Effect of bad finances, 193.
Legal aid attorneys, 193.
Purpose of legal aid, 133.
Bryce, James, on American lawyers, 228.
Buffalo Legal Aid Bureau, 145, 156, 168, 176,
191, 195,201,238.
Founded in 1912, 145.
Criminal cases declined, 156.
Extent of work, 191.
Fees charged by, 168.
Legislative work, 201.
Public grant to, 195.
Support by bar, 238.
Bureau of Justice, A
Need for, 15, 215.
Central legal agency, 90.
Under judicial control, 247.
Bureau of Justice, The (Chicago), 136, 144.
Founded in 1888, 136.
Rapid growth of, 136.
Resume of work, 144.
Merged in Chicago Legal Aid, 144.
Bureau of Personal Service, The (Chicag-o),
142, 176, 190. 6 ;

Enters legal aid work, 142.
Eighty-five per cent increase in work, 190.
Bureaus, Legal Aid, see Legal Aid Organiza-
tions.

Burke, William F., work in Cleveland Court,

48.

California Commission on Immigration, 95.

California Industrial Accident Commission,
on effect of delays, 84.

California State Bureau of Labor, wages col-
lected by, 98.

Cambridge Legal Aid Bureau, see Harvard

Legal Aid Bureau.
Carnegie Foundation

Studies in legal education, xi.
Study of legal education, 227.
Central Legal Aid Organization
Need for, 197, 217.

In desertion cases, 170.
To standardize records, 160.
To nationalize work, 245.
To be clearing house, 246.
Condition to future success, 244.
Possibilities of, 198, 199.

War service by, 214.
Result of failure to establish, 234.
Chambers of Commerce, see New York Cham-
ber of Commerce, Chicago Association of
Credit Men.

Arbitration favored by, 68, 69.
Charity Organizations
Express need for legal aid, 188, 222.
Fail to develop Bridgeport legal aid, 177.
Furnish legal aid, 133.
Legal aid work and
Relation, 150.
Cooperation, 219, 224.
Volunteer counsel failure, 220.
Legal aid work for, 140, 143, 223.

Expert service, 222.
Representation on legal aid directorate, 245.
Charity Organization Legal Aid Bureaus,

see Types of Legal Aid Organizations.
Charity Work by Lawyers, 85.
Chart, three methods used to meet expense of
lawyers' services, 40.

Chicago Association of Credit Men, provides
for arbitration, 69.

Chicago Bar Association, on attorneys in small

claims court, 52.
Chicago Legal Aid Society, see Bureau of

Justice, Protective Agency for Women and

Children, 52, 97, 144, 146, 154, 155, 159,

163-168, 176, 187, 190, 191, 193, 195, 200,

201, 210, 216, 223, 238.
Early history, 136.
Result of merger in 1905, 144.
Cases of

Classified, 154.

Sources, 159.
Criminal cases given up, 156.
Extent of work, 191.
Fees

Charged by, 168.

Report on, 165, 167.

258

INDEX

Could double work, 190.

Work limited by finances, 193.

Legislative work, 200.

Litigation avoided, 164.

Reference of cases, plan, 163.

Small loans, work in, 260.

Support from bar, 238.
Chicago Municipal Court

Provision for arbitration, 71.

Small claims session of, see Small Claims
Courts : Chicago.
Chicago Women's Club, starts legal aid, 135.
Children, see also Domestic Relations.

Protective legislation secured, 201.
Children's Aid Society, The Boston, coopera-
tion with legal aid, 223.
Choate, Joseph H., quoted on contingent fees,

86.
Churches, on legal aid directorate, 245.
Cincinnati Domestic Relations Court

Wide jurisdiction, 75.

Use of conciliation, 81.
Cincinnati Legal Aid Society, 33, 144, 168,
176, 191, 202.

Started in 1907, 144.

Extent of work, 191.

Fees charged by, 168.

Legislative work, 202.
Cincinnati Municipal Court, provision for ar-
bitration, 71.
Cities

Growth of, cause of judicial breakdown, ix,
xiii, 7.
Need for legal aid, 133.

Denial of justice in large, 187.

Extent of legal aid measured by, 187.
Citizenship, see also Immigrants, Americaniza-
tion.

Good, promoted by legal aid. 217.

Small claims court effect on, 53.
Class, no dominating, causes injustice, 15.
Class Distinctions

Foreign to Anglo-Saxon law, 3.

Result of, inlaw, 12.

Caused by court costs, 29.

Substantive law free from, 13.
Employer's liability law, 15.
Class Legislation, public legal aid is not, 182.
Clerks of Court

Assistance of, to parties, 48, 78.
Need for, 56.
Cleveland Legal Aid Society, 116, 125, 129,
143, 146, 154, 159, 164, 166-168, 176, 177,
191, 201, 216.

Begun in 1904, 143.

Cases

Classified, 154.
Sources of, 159.

Defender urged by, 116.
Extent of work, 191.
Fees

Believes in, 167.
Charged, 168.
Legislative work, 201.
Litigation avoided, 164.
Cleveland Municipal Court
Arbitration rule, 71.
Costs, report on, 20, 23.
Economy of, 26.

Conciliation branch, see Small Claims Courts :
Cleveland.
Collection Agencies

Fraudulent in Missouri, 203.
Profit from defects in law, 42.
Small claims courts and, 54.
Watched by legal aid, 227.
Colonies, American
Lawyers in, 31.
Laws after Revolution, 6.
Were denied justice, 6.
Colorado Springs Legal Aid Society, started

in 1912, 145.
Columbus Legal Aid Committee
Extent of work, 191.
Slow growth of, 174.
Columbus Municipal Court, power of, as court

trustee, 58.
Common Law

Appeals by poor needed, 27.
Legal aid work and
In general, 206.
In test cases, 208.
Opportunity for, 206.
No costs in, 20.

Not scientific development, 214.
Community and Legal Aid Work, see also Citi-
zenship, Preventive Law.
Legal aid service to, 150, 210.
Prosecution of lawyers, 155.
Loan shark work, 210.
Benefited by legal aid and charities coopera-
tion, 225.
Complaints against Lawyers
Legal aid work in, 226.
Legal aid rule to reject, 153.
Criticism of, 154.
Compromise of Cases
Forced by delay, 17.
Forced by unfair law, 87.
Conciliation

Advantages, 65, 66.

Definition of, 60.

Nature and history, 60, 61.

Codes of ethics sanction, 60.

Court rules for, in New York, 55, 63.

Future of, 66, 67.

INDEX

259

Judicial, not established, 243.
Small claims courts and, 63.

Power to use, 59.
Used in European Courts, 61.
by American courts, 63.
by arbitration boards, 70.
by Industrial Accident Commissions, 64, 88.
by Interstate Commerce Commission, 92.
by labor commissions, 97, 98.
by legal aid organizations, 63.
in domestic relations, 64, 80.
in Industrial Courts, 62.
Conciliation Courts, see also Small Claims
Courts.

Power to render judgment, 66.
Conference of Bar Association Delegates
Considers legal aid work, ix, 234.
Resolution on duty of bar, 226, 237, 239.
Constitution

Of Mexico not enforced, 16.
Of United States guarantees equal justice, 4.
Constitutions

Guarantee equal justice, 3, 4, 8.
Court costs not required by, 20.
Protect accused persons, 6.
Provisions for conciliation, 61.
Constitutional Law

Compulsory assignment of counsel, 101.
Judgments paid by instalments, 57.
Laws held unconstitutional

Detroit Domestic Relations Court Act, 75.
Protection of children act, 201.
Wage assignments act, 201.
Nonpayment of wages criminal, 96, 98, 99.
Right of accused to counsel, 103.
Contempt Proceedings, see Domestic Relations

Law.
Contingent Fees

Rise and causes of, 85.

The bar and, 38, 86.

The law and courts on, 86.

Abuses of, 86, 114.

Legal aid organizations and, 156, 243.

Popular suspicion of, 183.

Effect on bar, 228.
Workmen's compensation acts and, 158.
Corruption, not a cause of injustice, 15.
Cost of Justice, see Administration of Justice,
Court Costs, Delay, Expense of Justice, Ex-
pense of Lawyers' Services.
Costs, see Court Costs.
Council of National Defence, adopts legal

aid handbooks, 214.
Counsel, see Assignment of Counsel, Expense

of Lawyers' Services, Lawyers.
Court Costs, see also In Forma Pauperis Pro-
ceedings.

Abolition of, see Reduction of.

Considered, 20.

By compensation acts, 84, 85, 92.

By Kansas Small Claims Courts, 45.

By Massachusetts Labor Bureau, 97.
Appeal costs, 27.

California rule changed, 204.
Bonds to secure, 28.
Briefs and transcripts, 27.
Classification of, 24.
Court's power to dispense with, 29, 209.
Defect in administration of justice, 16.
Denial of justice caused by, 8, 20, 28, 29.

In small cases, 41, 44.
Deterrent to litigation, 21, 26, 30.

In divorce cases, 155.
Exist only under statute, 20.
Legal aid appeals prevented, 206.
Public defrayment of, in Europe, 248, 249.
Question of, neglected, 20.
Reduction of, see Abolition of.

Arbitration proceedings, 71, 72.

Conciliation proceedings, 62, 66.

Domestic relations courts, 76, 77.

Municipal courts, 25.

Small claims courts, 46, 50, 52.

Urged by legal aid, 203.
Remedies for difficulty, 25, 26.
System of

Origin, 21.

Unfair and illogical, 22, 23.
Table showing amount of, 25.
Witnesses, 27.
Courts, see also Court Reorganizations, Domes-
tic Relations Courts, Industrial Courts,

Small Claims Courts.
Contingent fees and, 86.
Desire to end delays, 19.
Ejectment, control over, 14.
Need administrative branches, 93.
Political importance of, 42.
Power to assign counsel, 100.
Records, use of, 215.
Refer cases to legal aid, 159.
Lower courts

First, in America, 6.

Costs in, 24.

Counsel not assigned in, 103.
Municipal courts

Oust justices of peace, 43.

Effect on small cases, 43.

Lessen delay, 19,

Reduce costs, 25.
Courts, Reorganization of
Present organization bad, 7.
Will not abolish lawyers, 31.
Legal aid shoidd partake in, 199.

260

INDEX

Not expensive, 90.
Need for, 215.
Advantages through

Lessen delays, 19.

Reduce costs, 27.

Promote equality, 128.

Greater economy, 26.
Should include

Administrative methods, 91.

Central legal aid agency, 90.

Judicial legal aid, 247.
Court Trustee, see Trustee, Court.
Criminal Cases [155.

Failure of legal aid organizations in, 141, 144,

Has led to defender plan, 156.
Serious distinguished from minor, 106.
Criminal Law, see Defender in Criminal Cases,

Domestic Relations Law.
Antiquated procedure, 19.
Constitutional safeguards, 6.
Delays in, 18.
Poor persons and, 105.
Protections for accused, 108.

Failure of, 108, 110, 111.
Criminal Proceedings

Assignment of counsel in, 103.
Bettered by defender's work, 121, 124.
Lawyers needed in, 111.
Popular criticism of, 105.
Simple in lower courts, 124.
Wages collected through, 96.
Curtis v. Gokay : decision on arbitration, 68.

.Dallas Legal Aid Bureau, 97, 148, 176, 185,
190, 202.

Under Public Welfare Board, 148.

Extent of work, 190.

Legislative work, 202.

Killed by politics, 186.
Damages, Law of, in personal injury cases, 87.
Dayton Legal Aid Division, Department of
Welfare, 148, 176, 177, 185, 190.

Work taken over by city, 148.

Extent of work, 190.
De Tocqueville, on American lawyers, 228.
Defaults, service of process by mail does not

cause, 26, 49.
Defects in Administration of Justice, see Ad-
ministration of Justice, Court Costs, Delay,

Expense of Lawyers' Services.
Defender in Criminal Cases

Definition of term, 105.

History of the defender plan, 115, 156.

Substance of the plan, 107. 116.

Arguments concerning need for, 107, 108, 202.

Assigned counsel and, 100, 112.

Conduct of cases by, 122.

Criminal procedure improved by, 124.

Legal aid and, 106.

Two should merge, 235, 244.
Legislation concerning, 116, 117.
Popularity of plan, 127.
Work of

Nature, 118.

Extent, 117, 118.

Value of, 119, 123.

Ethical questions, 120.

Expense, 119.

Results, 118.
In lower criminal courts, 107.

Question of necessity for, 124.

Work of probation staffs, 125, 127.
In Columbus, Los Angeles, and Portland, 117,
125.

Work and value of, 126.
Delay
The evil of, 16, 17.

In appeals, 18.

In criminal cases, 18.

In personal injury cases, 84.

In small cases, 41.
Two main kinds of, 18.
Causes of, 19.
Early law had little, 6.
Forces merchants to arbitrate, 69.
Elihu Root on, 17.
Usefulness of, 17.
Methods of eliminating

In general, 19.

Arbitration, 70, 72.

Conciliation, 66.

Defender in criminal cases, 122.

Domestic relations courts, 76, 77, 82.

Interstate Commerce Commission, 92.

Small claims courts, 45, 50, 52.
Democracy

Depends on law, xiv, 5.
Cannot have class distinctions, 5, 12.
Denial of Justice

Causes of, in general, 15.

Delays, 84.

Excessive costs, 28.

Faulty court organization, 16.
Substantive law not a cause, 15.
Not a class issue, 9.
Effects of

Far-reaching, 8, 10.

Anarchy, 5, 11, 12.

Aids dishonesty, 9.

Danger of, xiii, xiv.

In domestic relations cases, 73.

In personal injury cases, 86.
Program for ending, 240.
Reduced by

Domestic relations courts, 82.

INDEX

261

Small claims courts, 55.

Failure of legal aid to end, 194.
Denmark

Conciliation courts in, 61.
Their success, 62.

Counsel for accused provided, 115.
Denver Legal Aid Dispensary, 143-14.5.

Started in 1904, 143.

Plan to use law students, 143.
Desertion Cases

Failure of legal aid to handle, 170.

Special organization in New York for, 145.
Detroit Domestic Relations Court

Wide jurisdiction of, 75.

Conciliation employed, 81.

Held unconstitutional, 75.
Detroit Legal Aid Bureau, 144, 160, 166, 174,
191, 236, 239.

Started by bar in 1909, 144.

Disposition of cases, 160.

Donations by clients to, 166.

Extent of work, 191.

Bar's failure to extend, 174.
Difficulties in Administration of Justice, see

Administration of Justice, Court Costs, De-
lays, Expense of Lawyers' Services.
Disbarment Proceedings, cost of, borne by

state, 28.
Disposition of Cases, see Legal Aid Work : Dis-
position of cases.
Dissatisfaction with Law

Causes of, 15.

Led to administrative tribunals, 83.
District Attorney

Defender and, 121.

Duties in criminal cases, 108-110.

Powerful position of, 113.

Partiality, 110.

Shyster lawyer and, 114.
District of Columbia Municipal Court, econ-
omy of, 26.
Divorce Cases, see also Domestic Relations.

Assignment of counsel in, 102.

Conciliation in, 64.

Costs, 23.

Legal aid rule to reject, 155.
Divorce Proctors, in England and United

States, 102.
Domestic Relations, Cases of

Many among the poor, 73.

Important in legal aid work, 135, 152.

Abuses in, investigated, 162.

Conciliation in, 64.

State control of, in Los Angeles, 181.
Domestic Relations Courts

Conciliation used in, 64, 80.

Criminal process used, 75.

Future extension of, 81.

General work of, 80.
Needs of

Wider jurisdiction, 74.

Unification, 74.

Lawyers' services, 79.
Success of

In general, 77, 242.

Effect on delay and costs, 76, 77.

Effect on expense of lawyers, 78.
Use of probation staffs, 78.
Domestic Relations Law

Civil and criminal remedies contrasted, 76.
Growth of criminal remedies, 74, 75.
Inadequacy of civil remedies, 75.

Contempt proceedings, 77, 79.
Interest of state in, 73.
Difficult field for law, 73.
Duluth Free Legal Aid Bureau, 28, 101, 145,

148, 176, 185, 190.
Started in 1913, 145.
Work taken over by city, 148.
Extent of work, 190.
Pays costs for clients, 28.

JiiDisoN Electric Illuminating Company of

Boston, plans legal aid for employees, 173.
Education, Legal

Legal aid organizations and, 226.
Clinical training, 165, 235.
Clinical work in Denver, 143.
Legal aid work done by law students, 145,
148.
Significance of, 174.
Plan in France, 248.
Ejectment Proceedings, see also Landlord and
Tenant Law.
Use of fictitious leases, 14.
Embree, William Dean, report of, quoted, 121.
Employees, see Interstate Commerce Em-
ployees, Wage-Earners, Workmen's Compen-
sation Acts, Workmen, Injured.
Employers

Legal aid furnished by, 171, 172, 236.
On legal aid directorate, 245. [89.

Reports to industrial accident commissions,
Unscrupulous, aided by inadequate adminis-
tration of justice, 9.
Endowments, legal aid organizations lack, 195.
England, fraudulent legal aid societies in, 199.
English County Courts

Provision for small cases, 42.
Act as court trustee, 58.
Control over ejectment, 59.
Use of instalment judgments, 57.
English Law
Arbitration developed, 68.
Assignment of counsel, 102, 231.
Rules for, 232.

262

INDEX

Court costs in early, 20, 21.

Divorce proctors in, 102.

Failure to secure equality, 22, 231.

Unfair criminal law, 6, 107.
Judicial legal aid work, 247.
Treasury grant for costs, 28.
Equality, political and economic, depend on

law, 5.
Equality of Justice

History of the principle, 3.

Legal guarantees of, 3, 4.

An essential requirement, xi, 3, 180, 215, 240.

Democracy and, 5.

Political significance, 4, 5.

In criminal matters, 105, 107.

Defender secures, 127.
In early laws, 6.
Assigned counsel and, 103.
Substantive law and, 13, 15.
Promoted by

Administrative tribunals, 91.
Arbitration, 71.
Conciliation, 66.

Domestic relations courts, 80, 81.
Compensation acts, 88.
Requires lawyers, 129.
Ethics

In criminal cases, 120.
Legal aid standard high, 165.
Ethics, Canons of: lawyer's duty to poor, 232.
Ethical Culture Society, founds Bureau of

Justice, 136.
Evidence, Rules of, see also Procedural Law.
Disregarded by Industrial Accident Commis-
sions, 88.
Expense of Justice, see Administration of Jus-
tice, Court Costs, Expense of Lawyers' Ser-
vices.
Effect in criminal cases, 112.
Cost to government, 183.
Reduced by

Conciliation, 65.
Defender, 120, 123.
Industrial accident commissions, 90.
Small claims courts, 51, 52.
Expense of Lawyers' Services
In colonies, 6.

The fundamental difficulty, 31, 128, 241.
Lawyers' services necessary, 16, 111.
Poor unable to meet, 33, 88.
Results of

Prohibits small cases, 41, 44.
Destroys equality, 181.
Unnecessary in part, 33, 125.
Solution of difficulty
In general, 39.
Assignment of counsel, 100.
Administrative tribunals, 87, 91.

Conciliation proceedings, 62, 66.
Domestic relations courts, 78.
Legal aid organizations, 133.
Small claims courts, 45, 46, 52.
In foreign countries, 115.
Extent of Legal Aid Work, see Legal Aid
Work, Extent of.

.r ailure of Administration of Justice
Causes of, 6, 7.
Realized slowly, 7.
Evidence of, 8, 151.
Farmers, state legal aid for, in Virginia, 95.
Federal Government : legal aid to drafted

men, 183.
Fees, see also Contingent Fees, Court Costs, Ex-
pense of Lawyers' Services.
Charged by legal aid organizations
First rules, 135.
Plan of retainer, 139.
Nature of, charged, 165.
Table showing amount, 16S, note 1.
Practice varies, 136, 165.
Arguments concerning, 165, 167, 235.
Fellow Servant Rule
Origin and effect of, 14.
Under compensation acts, 89.
Finances of Legal Aid Organizations
Early difficulties, 137, 142.
Legal aid work not expensive, 194.

Table of expenses, see Appendix, Table III.
Per capita expense, 190.
Meagre amount of, 193, 195.
Effect of inadequate, 142, 184, 193, 196, 200.
In Chicago, 190.
In New York, 144, 155, 211.
In Denver, 144.
No grants from state, 195.
Income from clients' fees, 168.
Better in independent organizations, 177.
Duty of bar to provide, 237, 239, 245.

Amount given by lawyers, 238.
Strong, condition to future of work, 244.
Ford Legal Aid Bureau, 172-236.
Its plan, criticized, 172.
Table of work, 172.
Fraud, denial of justice abets, 9.
Frauoulent Legal Aid Organizations
First attempt to start, 138.
Danger of, 199.
Freedom of Justice, see Equality of Justice.
A basic principle, 3.
Relation to equality, 180.
French Law
Assistance to poor persons, 26.
Assignment of counsel, 101.
Judicial legal aid, 247.

INDEX

263

Lawyers' duty to poor, 231.
New trial after conviction, 119.
Future of Legal Aid Work, see Legal Aid
Work, Future of.

Garland, ex parte, decision as to lawyer's

function, 32.
Garnishment of Wages, used for extortion, 9.
Germany

Counsel for poor in, 231.

Legal aid work in, 171.

Criticism of organization, 171.
German Society, The

Legal aid to immigrants, 134. [137.

Supported New York Legal Aid Society, 135,

Withdraws support, 137.
Government, see also State.

One of laws, not men, 4.

Duty to provide justice, 4, 5, 182.

Relation of individual to, 13.
Grand Jury, function in criminal cases, 108.

Value questioned, 109.

tl ale, Chief Justice, on duty of assigned coun-
sel, 231.

Handbooks on Law, published by legal aid or-
ganizations, 212.

Hamilton, John Alan, work for Buffalo Legal
Aid, 195.

Harley, Herbert, on administrative tribunals,
83.

Habtford Legal Aid Bureau, 148, 168, 176,
185, 191, 202, 209.
Work taken over by city, 148, 202.
Growth under public control, 185.
Fees charged, 168.
Extent of work, 191.
Legislative work, 202.
Test case by, 209.

Harvard Legal Aid Bureau, 145, 174, 191.
Founded by students in 1913, 145.
Good work of, 174.
Extent of work, 191.

Hoffman, David, first code of ethics by, 232.

Houston, Marion, on legal aid and charity co-
operation, 219.

Hughes, Charles E. , on lawyer's duty to poor,
233.

Husband and Wife, see Domestic Relations.

I LLEGrriMACY, see also Domestic Relations.
Common problem in children's agencies, 222.
Legal aid expert in law, 222.

Laws changed by legal aid organizations,
200, 201.
Immigbants, see also Americanization, Citizen-
ship.

And American institutions, ix.

Importance of justice, xiv.
In criminal matters, 125.
Denial of justice, effect on, 11.
Legal aid founded to aid, 133.
Special branch in New York for, 211.
Unable to collect wages, 9.
Immigbation
And administration of justice, 7.

Cause of difficulty, ix, xiii.
Increased need for legal aid, 133.
Immigration Commission, gives legal aid, 95.
Incorporated Legal Aid Societies, see Types

of Legal Aid Organizations.
Industrial Accident Commissions
Growth of, 90.
Success of, in general, 243.
Lessen delay, 84.
Limits of, 89.
Effect on need for lawyers, 87, 91.
Effect on appeals, 85, 89.
Settlement of cases by, 87.
Trials before, informal, 88.
Use of conciliation, 64, 88.
Use of legal aid organizations, 89.
Use of investigators, 88.
Cost of, in Massachusetts, 90.
Industrial Courts
System of, in Europe, 62.
Use conciliation, 62.
Infebiob Coubts, see Courts: Lower courts.
In Forma Pauperis Proceeding
At common law, 30.
Statutes establishing, 21, 22.
Disuse in America, 22.
In federal courts, 26, 231.
And assignment of counsel, 32, 100.
Need for extension of, 26.
Denied in contingent fee cases, 86.
Plan in England, 249.

In Scotland and France, 26, 101. [110.

Innocence, presumption rule in criminal law,
Instalments

Judgments paid in, 56.
Value of, 57.
Practice in England, 57.
Interstate Commerce Commission
In general, 92.
Legal aid by, 92.
Interstate Commerce, Employees in, need

compensation act, 90.
Investigators
Use of, by

Industrial Accident Commissions, 87, 88.
Interstate Commerce Commission, 92, 93.
Massachusetts Labor Bureau, 97.
Minnesota Labor Bureau, 95.
Value of plan, 91.
Italian Law: lawyer's duty to poor, 231.

264

INDEX

Jersey City Legal Aid Society, 138, 155, 176,
191, 239.

Early history, 138.

Regular society formed, 148.

Extent of work, 191.

Divorce cases rejected, 155.
Judges, see also Courts.

Conciliation distrusted by, 60, 65.

Duty of, in criminal cases, 108.

Function of, in private control, 181.

Indifferent to denial of justice, 9, 11, 37.

Lack power to enforce equality, 109.

Refer cases to legal aid, 159.

Representation on legal aid directorate, 245.

Weak, danger of, 47.
Judgment, see Instalments, Judgments paid in.
Judicial Control of Legal Aid Work, see also
Public Legal Aid.

Superior to municipal control, 186, 247.

Legal aid a public function, 246.

Trend towards public control, 246.

In other countries, 247, 248.

American precedents for, 249.
Judicial Legislation, in injured employees'

cases, 15.

Justice, see aho Administration of Justice, De-
nial of Justice, Equality of Justice, Expense
of Justice, Failure of Justice.

The end of legal institutions, 13.
Justice according to Law

The only safe method, xii, 13.

Defects of, 13.

Its merit challenged, 10.

Regulation of public utilities, 92.

Administrative tribunals and, 91.

Arbitration and, 69.

Conciliation and, 67.

Small claims courts and, 45, 47, 51, 54.
Justice of the Peace

Corrupt in small cases, 42.

Evils investigated by legal aid, 201, 202.
Juvenile Courts, see Domestic Relations Courts.

IYansas City Domestic Relations Court
Its service, 77.
Uses conciliation, 81.
Kansas City Legal Aid Bureau, 97, 129, 145,

154, 164, 170, 176, 177, 180, 185, 189, 190,

202, 212.
Started in 1910, 145.
Under Board of Public Welfare, 146.

Significance of, 146.
Cases classified, 154.
Desertion cases, success in, 170, 185.
Extent of work, 190.
Handbook on law, 212.

Legislative work, 202.
Litigation avoided, 164.
Per cent of population clients, 189.
Kansas Small Debtors' Courts, see Small
Claims Courts : Kansas.

Labor Commissions, 96-98.
Labor Unions

Representation on legal aid directorate, 245.

Legal aid work by, 141.

Legal aid relation to, 236.

Lacey, Judge (Detroit Domestic Relations
Court)

On need for wider jurisdiction, 76.

On use of criminal process, 73.
Landlord and Tenant Law

Feudal in conception, 14.

Use of fictitious leases in, 14, 207.

Court control over ejectment, 14, 59.
In England, 59.

Under Soldiers' Relief Act, 59, note 2.
Latshaw, Judge (Kansas City Criminal Court),

on need for defender, 116.
Law, see also Administration of Justice, Com-
mon Law, Criminal Law, Government,
Domestic Relations Law. Legislation. Pre-
ventive Law, Procedural Law, Substantive
Law.

Administrative, rapid rise of, 83.

American, four cardinal needs of, 215.

Handbooks on, published by legal aid, 212.

Modern, is complicated science, 7, 16, 31.

Rights protected by, 5.
Law Schools, see Education, Legal.
Law School Legal Aid Societies, see Types of

Legal Aid Organizations.
Lawyers, see also Bar, Expense of Lawyers' Ser-
vices.

Competition with, by legal aid, 235.

Duty to court, 165.

Duty to poor persons, 100, 101, 230-232.

Importance and necessity of, 7, 31, 32, 87.

Indifference to denial of justice, 9, 11, 37,
85.

Indifference to legal aid, 236.

Failure to support, 238.
Conciliation proceedings and

Distrust of, 60, 65.

Eliminated by, 62, 64, 66.
Conduct in criminal cases, 111, 112.
Delays, desire to end, 19.
Domestic relations courts and, 80, 89.
Small claims courts and

Needed in, 56, 89.

Excluded from, 44, 46, 49, 52, 87.
Workmen's compensation acts and, 88.

Oppose extension of acts, 91.

Needed in cases under, 89, 91.

INDEX

265

State paid, argument for, 181.

Voluntary service of, 219, 236.
Leadership, Legal Aid Need for, 235, 244.
"Legal Aid"

Danger of abuse of phrase, 198.

Phrase protected by courts, 138.

Standard name for organizations, 140.
Legal Aid Bureaus, see Legal Aid Organiza-
tions.
Legal Aid Organizations [individual organ-
izations are indexed by cities], see also
Types of Legal Aid Organizations.

Definition of, 134.

In general, 128, 159.

Causes of formation, 85.

Are part of administration of justice, 128, 162,
171.

Do not advertise, 158.

Popularity of, 229.

Reputation with courts, 159.

See popular distrust of law, 11.

In criminal field
Need for, 116.
Relation to defender, 106, 127.

History of

Period from 1876 to 1899, 134.
Local nature of work, 138.
Period from 1900-1909, 140.
Period from 1910-1913, 145.
First public legal aid, 146.
National alliance formed, 147.
Period from 1914-1918, 147.
Resume" of history, 148.

Staffs of attorneys, 192.
Excellence of, 193, 229.
Loyalty of, ix.

And arbitration, 70.

And assignment of counsel plan, 101, 102,
104.

And conciliation, 63.

And domestic relations courts, 79.

And defender in criminal cases, 127, 156, 169.

And industrial accident commissions, 89.

And labor commissions, 97.

And small claims courts, 46, 49, 56.
Legal Aid Review, quarterly publication, value

of, 143.
Legal Aid Work, see also Central Legal Aid
Organization, Charity Organizations and
Legal Aid, Common Law, Community and
Legal Aid, Finances of Legal Aid Organ-
izations, Judicial Control of Legal Aid
Work, Legislation, Legal Aid and the Bar,
Types of Legal Aid Organizations.

Organized and individual distinguished, 133.

Origin of, 133.

Distrusted by bar, 135.

Principles controlling. 162, 164.

Hampered by finances, 193.

Inexpensive to conduct, 194.

Cost of work per case, 195.
Method of conducting work, 161.
Rapid growth of, 133.
Reference of cases, 163.
Under judicial control, 50, 186.
In Scotland and France, 101.
Cases

Nature of first cases, 135.

Total work in 1889, 139.

Total amount of work, 151, 152.

Number for charities, 223.

Table of number of cases, Appendix,
Table I.

Table of collections for clients, Appendix,
Table II.
Disposition of cases, 160, 161.
Extent of

From geographical viewpoint, 187.

Tested by size of cities, 188.

Tested by amount of work, 189.

Table showing, for each organization, 190.

Tested by types of organizations, 192.
Future of

Importance of, 240.

Depends on bar, 239.

Cooperation with remedial agencies, 241-
243.

Requires growth, 244.

Development of technique, 247.

Trend towards judicial control, 247.

Plans for, feasible, 249.
Nature of work

In general, 134, 152.

Part of administration of justice, 180, 186,
246, 247.

Entirely local, 197.

Vital and human, 196.

Classification of cases, 154.

Trustee work, 58.

Types of cases rejected
Criticism of, 153.
Criminal cases, 144, 155.
Personal injury cases, 156.

Similarity to small claims courts, 164.
Philosophy of

Early limited conception, 135.

Broadened by Briesen, 137.

Influence of public bureaus, 146.

Development of ideas, 151.

Distinct from charity work, 178.
Records

Criticism of, 160.

Must be standardized, 197, 246.

Importance of, 217.

Early, 135.

Use of, for remedial legislation, 201, 205.

Of dispositions of cases, 142, 159.

266

INDEX

Of nationalities of clients, 137.
Of nature of cases, 153.
Of sources of cases, 142, 158.
Reports on, see Reports of Legal Aid Organ-
izations.
Sources of cases, 158, 159.
War service, 212, 214.
Legal Aid Work and the Bar

Relationship between, 100, 138, 141, 226.

Future work depends on, 239.
Competition between, 85, 156, 157, 162.
Service to bar, 276.

Aid bar's reputation, 228.
Investigate complaints, 155.
Duty of bar to legal aid, 229, 230, 232, 233,

236.
Indifference of bar to legal aid, 175.
Failure to support, 85, 238.
Per cent of bar aiding, 238.
Legal Education, see Education.
Legal Suggestions for Soldiers and Sailors,
published by Boston Legal Aid Society, 213.
Legislation

Interest of legal aid in, 200.
Opportunity for remedial, 150, 204.
Improved by legal aid organizations, 200, 203-
205.
Legislatures disposed to end Delays, 19.
Levine, Judge Manuel
Conciliation work by, 64.
On small claims courts, 54.
Lincoln, Abraham

Quotation on conciliation, 60.
Adopted as legal aid principle, 164.
Litigation used as last resort in legal aid, 164.
Loans, see Small Loans.
Loan Sharks, see Small Loans.
Lodging-house Keepers, legal disadvantages

of small. 43.
Longshoremen, and compensation acts, 90.
Los Angeles County Public Defender, 23, 97,
98, 101, 105, 117, 124, 126, 148, 163, 169, 176,
180, 182-185, 189, 190, 204.
A public office of county, 105.
Established in 1913,117.
Extent of work, 117, 190.
Nature and result of work, 118, 123, 204.
Expense of office, 120.
Work of, compared with private attorneys,

122, 123.
Should appear in lower courts, 124.
Per cent of population clients of, 189.
Plan of referring cases, 163.
Los Angeles Domestic Relations Court, 77.
Los Angeles Police Court Public Defender,
148.
Established in 1915, 117, 126.
Method of work, 126.

Louisville Legal Aid Committee, 145, 176,
191, 214.
Started in 1913, 145.
Extent of work, 191.
War service, 214.

Machinery of Justice, see Administration of
Justice.

Magna Carta, its tradition of free justice, 3.

Mail, see Service of Process by Mail.

Marshall, Chief Justice, on importance of jus-
tice, 9.

Martin v. Alameda County : California deci-
sion on costs, 29.

Massachusetts Bar Association, considers ex-
tension of compensation plan to railway pas-
sengers, 91.

Massachusetts Immigration Commission, advo-
cates defender, 116.

Massachusetts Labor Commission, effective col-
lection of wages by, 96, 97, 129.

Master and Servant, see Workmen's Compen-
sation Acts. [193.

Matz, Rudolph, leader of legal aid in Chicago,

Medical Experts, see Witnesses.

Milwaukee Legal Aid Society, 148, 160, 176,
191, 213, 214.
Disposition of cases, 160.
Extent of work, 191.
War service, 213, 214.

Minneapolis Legal Aid Bureau, 145, 160, 168,
176-178, 180, 190.
Started in 1913, 145.
Alliance with law school, 145.
Disposition of cases, 160.
Extent of work, 190.
Fees charged by, 168.
Good work of, 180.

Minneapolis Small Claims Coubt, see Small
Claims Courts: Minneapolis.

Minnesota Department of Labor, legal aid by.
in compensation cases, 95.

Municipal Courts, see Courts: Municipal.

Murder Cases

Counsel assigned to accused in, 103, 112.

Success of plan, 112.
Defence of insanity, 122.

Nashvflle Legal Aid Bureau, 58, 148, 153,
173, 191, 212.

Extent of work, 191.

Service to employers, 173.

Rejects bankruptcy cases, 153.

Pamphlet on law, 212.
National Alliance of Legal Aid Societies, see
also Central Legal Aid Organization.

Organized in 1912, 147.

Weakness of, 147, 197, 245.

Should standardize records, 160.

INDEX

267

National Desertion Bureau, 145, 170, 176.
Started in 1911, 145.
Nature and success of, 170. [of.

Nature of Cases, see Legal Aid Work, Nature

Negligence Cases, see Industrial Accident Cora-
missions, Personal Injury Cases, Workmen's
Compensation Acts.

Newark Legal Aid Society, 33, 97, 141, 160,
168, 176, 191, 236, 238.
Started in 1901, 141.
Disposition of cases, 160.
Extent of work, 191.
Fees charged, 168.
Support by lawyers, 238.

New Haven, Yale law students do legal aid
work in, 148, 191.

New Jersey Legal Aid Society, see Newark
Legal Aid Society.

New Jersey Workmen's Compensation Bu-
reau, 89, 95.

New Orleans Legal Aid Society, 145, 174,
191, 236.
Started in 1913, 145.
Grown slowly, 174.
Extent of work, 191.
New Trial
Allowed on appeals, 18.
Power of judge to order, 110.
Correction of abuses of, 19.
Ordered for district attorney's improper con-
duct, 110.
New York Chamber of Commerce
Provides for arbitration, 69.
Use of conciliation, 70.
New York City Bar Association
Special committee on legal aid, 237.
Report on public defender, 113.
Excellent grievance work, 153.
New York County Lawyers' Association
Report on public defender, 113.
Excellent grievance work, 153.
New York Educational Alliance Legal Aid
Bureau, 142, 168, 176, 211, 214.
First work of, 142.
Fees charged, 168.
Stops divorce traffic, 211.
War service, 214.
New York Labor Secretariat, 236.

Plan of, 141, 171.
New York Legal Aid Society, 10, 63, 97, 101,
116, 136-138, 140, 142-144, 146, 147, 152,
154, 156, 157, 159, 162, 164-168, 176, 180,
187, 190, 193, 195, 199, 200, 203, 208, 211,
212, 213, 217, 237, 238.
Early history of, 134.
Careful organization, 135, 139.
Constitution and name changed, 137, 139.
Work broadened, 137.
Branch offices opened by, 139, 144.

Fights fraudulent society, 138.

Fees

Retainer charged. 139.
Fees charged, 168.
Report on, 166, 167.

Litigation avoided, 161.

Plan of, widely copied, 140.

Visited by Roosevelt, 10.

Classification of cases, 154.

Sources of cases, 159.

Extent of work, 190.

Per cent of population clients, 190.

War service, 213.

Inadequate finances, 193.

Amount of support by bar, 238.

Remedial legislation, 201, 203.

Test cases, 208.

Thwarts furniture swindle, 211.

And criminal cases, 116.

And domestic servants cases, 162.

And immigrants, 211.

And personal injury cases, 157.

Publications of

Legal Aid Review, 143.
Handbook for Domestic Servants, 212.
Sailor's Log, 212.
New York Municipal Court

Arbitration rules, 55, 64, 71.

Conciliation rules, 55, 63.
New York State Bar Association, resolution

on conciliation, 67.
New York Voluntary Defenders Committee,
108, 117, 118, 121, 148, 169, 180, 186, 194, 195.

Established in 1917, 117.

Extent, nature, result of work, 118.

And district attorney, 121.

Experience as to confessions of guilt, 121.

Excellence of, 186, 194.

New Zealand, provision of counsel for accused,
115.

Non-support, see Desertion Cases, Domestic

Relations.
Norway

Provision of counsel for accused, 115.

Conciliation courts in, 61.
Their success, 62.

Omaha Free Legal Aid Bureau, 148, 176, 185,
191.

Established in 1916, 148.

Extent of work, 191.

Organization of Courts, see Courts, Reorgan-
ization of.

I assengers on Railways, compensation plan

for, 90.
Patriotism, see also Citizenship.

Weakened by denial of justice, 11.

268

INDEX

Pauperis, In Forma, see In Forma Pauperis.
People v. Harris : case illustrating work of de-
fender, 118.

Per Capita Amount expended by Legal Aid

Organizations, 190.
Personal Injury Cases, see Contingent Fees,
Industrial Accident Commissions, Work-
men's Compensation Acts.
Rise of this litigation, 85.
Declined by legal aid organizations, 85, 156.
Rule criticized, 157.
Philadelphia Domestic Relations Court
Jurisdiction of, 75.
Use of conciliation, 81.
Philadelphia Legal Aid Society, 18, 101, 141.
146, 154, 163, 167, 168, 176, 177, 191, 195,
203,208,211,214,238.
Begun in 1902, 141.
Classification of cases, 154.
Extent of work, 191.
Fees charged, 167, 168.
Legislative work, 203.
Community service, 208, 211.
War service, 238.
Reference of cases, 163.
Support from bar, 238.
Philadelphia Municipal Court, recommends

small claims court, 54.
Piers Plowman, on defects in justice, 16.
Pittsburgh Legal Aid Society, 144, 147, 176,
191, 195, 203, 233.
Started in 1908, 144.
Extent of work, 191.

Legislative work, 203. [190.

Plainfield Legal Aid Committee, 148, 176,

Extent of work, 190.
Pleading, see Procedural Law.
"Poor Man's Lawyer," in London, 138.
Poor Persons, see also In Forma Pauperis.
Effect of denial of justice on, 9.
Do not receive equal justice, 8, 11.
Unable to use the courts, 9, 15.
Unable to pay court costs, 29.
Unable to employ counsel, 33.
Unable to take appeals, 27, 206.
Nature of litigation of, 39.
Preyed on by swindlers, 9, 152.
Free advice to, by administrative officials, 94.
Court as trustee for, 57.
English 1913 Rules for, 102.
Pope, James H., public defender in Los Angeles
Police Court, 126.

Population, growth of, cause of judicial failure,

7, 188.

Portland (Oregon) Municipal Court Purlic
Defendeb, 148, 169, 176, 177, 185, 186, 191.
Established in 1915, 125.
Work of, 126.

Undertakes civil cases, 148.
Extent of work, 191.
Killed by politics, 186.
Portland (Oregon) Small Claims Court, see

Small Claims Courts : Portland.
Pound, Roscoe
Advocates a bureau of justice, 15, 215.
On new development of law, 37.
On substantive law, 14.
On causes of failure of justice, 7.
On small cases, 41, 54.
Practice, see Procedural Law.
Practice of Law, changed by commercial ex-
pansion in United States, 85.
Preliminary Hearing in Criminal Cases, 108.
Preventive Law
Definition of, 214.
Legal aid opportunity in, 215, 224.
Cooperation with other agencies, 217.
Use of case material, 216.
Examples of, 216.
Pritchett, Henry S., Introduction by, xi.
Probation Staffs

In domestic relations courts
Importance of, 78, 79, 81.
Supplant lawyers, 78, 80, 82, 242.
In superior criminal courts, 108, 109.
In inferior criminal courts, 125-127.
Value of data collected by, 124.
Procedural Law

Serious defects in, xiii.
Causes denial of justice, 16.
Causes delay, 19.

Complicated, requires lawyers, 32.
Too complicated for small cases, 41.
Unnecessary for small causes, 52, 54.
Complicated by legislatures, 7.
Arbitration proceedings disregard, 69, 71.
Conciliation courts have informal, 62.
Domestic relations courts have simple, 78.
Small claims courts abolish technicalities, 46,
47, 50, 52, 54.

Workmen's compensation acts have simpli-
fied, 87, 88.

Simplification of

A cardinal need, 215.

Elihu Root on, 42.

Will promote equality, 128.

Will solve delays and costs, 241.

Will not solve need for lawyers, 31.

Legal aid should lead in, 199.
Prosecuting Attorney, see District Attorney.

Police should not act as, 125.
Protective Agency for Women and Children,

The Chicago, 136, 144, 201.
Founded in 1886, 135.
Nature and amount of work, 136, 144.
Merged in Chicago legal aid society, 144.

INDEX

269

Protocol in New York Cloak Industry, pro-
vides for arbitration and conciliation, 70.

Public Defender, see Defender in Criminal
Cases, Los Angeles County Public Defender,
Los Angeles Police Court Public Defender,
Portland Municipal Court Public Defender,
New York Voluntary Defenders Committee;
see also Criminal Cases, Criminal Law, Crimi-
nal Proceedings.

Public Legal Aid Bureaus, see Types of Legal
Aid Organizations.

Public Legal Aid Work
Importance of the idea, 146.
The wisdom of, ix.
And existing legal aid work, 236.

Public Service Law, popular criticism of, 14.

XVecords of Legal Aid Work, see Legal Aid

Work: Records.
Redlich, Professor, report on Case Method,

xi.
Reed, Alfred Z., in charge of Carnegie Foun-
dation studies in legal education, xi.
Remedial Agencies (for the different agencies
see Analysis of Contents, Part II, page iv).

In general, 37.

Classification of, 38.

Tests of, 38.

Significance of, 128.
Remedial Legislation, see Legislation.
Remedy Suggested

For costs on appeal, 27.

For excessive court costs, 25.

For cost of witnesses, 27.

For delays, 19.

For abuse of ejectment, 14.
Repobts of Legal Aid Organizations

Published from start in New York, 135.
In Chicago, 136.

Need for full reports, 178.

Of independent societies best, 177.

Convey true impression of work, 150.
Revenue to State from Court Costs, 21, 26.
Revolution, American, caused by injustice, 12.
Richmond Legal Aid Society, 148, 177, 191,
195, 239.

Extent of work in, 191.

Contribution from bar association, 239.
Rights of Individuals

Complicated in modern law, 7.

Depend entirely on law, xii, 4, 5, 9.

Defined by substantive law, 13.
Robinson, David, Portland Municipal Court

Public Defender, 125.
Rochester Legal Protection Committee, 55,
145, 168, 176, 177, 191, 214, 239.

Started in 1911, 145.

Fees charged, 168.

Extent of work, 191.

War service, 214.

Contribution from bar association, 239.
Roosevelt, Theodore, experience in legal aid

work, 10.
Root, Elihu

Foreword by, ix.

On delay, 17.

On simple procedure, 42.
Rowe, William V., study of legal clinics, 227.
"Runners"

In criminal cases, 114, 123, 125.
Ousted by defenders, 126.

Legal aid to protect immigrants from, 133.

In personal injury cases, 86, 157.
Russell Sage Foundation

Anti-loan shark work, 205.

Test case on wage assignments, 206.

St. Louis Legal Aid Bubeau, 145, 148, 154,
168, 176, 184, 185, 191.

Started in 1912, 145.

Work taken over by city, 148.

Classification of cases, 154.

Extent of work, 191.

Fees charged, 168.

Experience under public control, 184.
St. Paul Legal Aid Depabtment, 145, 176,
179, 180, 191, 223.

Started in 1912, 145.

Extent of work, 191.

Good work of, 180.

Work for charities, 223.

Growth after moving to lawyers' building, 179.
San Diego Legal Aid Bubeau, 148, 176, 191.

Extent of work, 191.
Sav Francisco Legal Aid Society, 98, 148, 160,
176, 191, 209, 236, 239.

Disposition of cases, 160.

Extent of work, 191.

Test case on court costs, 209.
Sailors, see Seamen.
Sailor's Log, published by New York Legal Aid

Society, 212.
Saloman, Edward, first president of New York

Legal Aid Society, 134.
Schmidt, J. P., advocates defender plan, 116.
Scottish Law

Assistance to poor persons, 26.

Assignment of counsel plan, 101, 115.

Bar associations furnish counsel, 231.

Judicial legal aid, 248.
Seamen

Legal aid by Shipping Commissioners, 94.

Legal aid service to
In Boston, 209.

In New York, 139, 203, 208,211.
In Philadelphia, 203.

270

INDEX

Handbook of law for, 212.
Need a compensation act, 90.
Separate Maintenance, see Domestic Rela-
tions.
Service of Process
Various methods used, 22.
Use of telephone, 44, 63.
By police in domestic relations cases, 76.
By mail, 22, 26.

In small claims courts, 44, 63.

Under compensation acts, 84.

Advantages of, 91, 202.
Settlement of Cases, forced by delay, 1 7.
Sharswood, on lawyer's duty to poor, 233.
Shipping Commissioners
Give advice to seamen, 94.
Arbitration of disputes, 94.
" Shyster " Lawyers

In criminal cases, 114, 125.
Ousted by defenders, 126.
Plan fraudulent legal aid organization, 138.
Simplification of Procedure, see Procedural

Laws, Simplification of.
Small Claims and Small Causes

Administration of justice neglects, 8, 41.
Court costs in, 24.

First handled by justices of peace, 42.
Under municipal courts, 43.
Provision for, in England, 42.
Small Claims Courts
Necessity for, 41.
Success of, 242.

Overcome delay and costs, 241.

In what cases, 49.

Political significance, 53.

Conditions to, 53.
Appeals from, 53.
Extension of plan, 54, 202.
Wider powers for, 55, 57, 59.
Clerks of, assist parties, 247.
Inferior to Labor Commission in wage col-
lections, 98.
Chicago Court

Origin and purpose, 51.

Costs and delays in, 52.

Attorneys in, 52.

Volume of work, 52.

Jurisdiction wide, 52.
Cleveland Court

Best type, 48.

Origin and development, 48.

Success of, 50.

Work of, 50.

Attorneys in, 49.

Uses conciliation, 63.
Kansas Courts

Origin, 43.

Statute creating, 44.

Nature of work. 44, 46.

Effect on costs and delays, 45.

Attorneys excluded, 45.

Unsoundness of, 45.

Influence on Portland Court, 46.
Minneapolis Court

Establishment of, 54.

Has conciliation power, 63.
Portland Court

Origin, nature of work, 46.

Success of, 47.

Attorneys prohibited, 46.
Small Debtor's Courts, see Small Claims

Courts.
Small Loans

Rise of loan sharks, 10, 11. [95.

Advice on, by administrative officials, 94,
Legal aid attorneys specialists in, 222.
Laws regulating, improved by legal aid or-
ganizations, 201, 202, 205, 208, 211.
Social Interests, secured by state through
law, 13, 182.

Social Workers, modern training of, 220.
Socialization of Bar, not involved in state

legal aid, 182.
Society for Gratuitous" Defence of Accused

Persons, in Rome, 115.
Societies, Legal Aid, see Legal Aid Organiza-
tions.
Soldiers, see Legal Aid Work : War service.
Soldiers' and Sailors' Civil Relief Act
Provides for
Assignment of counsel, 231.
Instalment judgments, 57.
Control over ejectment, 59, note 2.
Sources of Cases, see Legal Aid Work : Sources
of cases. [231.

Spanish Law: oath of attorney to serve poor,
Standard Number of Clients for each Legal

Aid Organization, attempt to fix, 190.
State, see also Government.
Interest of

In all litigation, 182.
In domestic relations, 73, 75, 82, 102.
In ejectment proceedings, 59.
Duty to provide justice, ix, 169, 183, 184.
Duty to furnish lawyers
In criminal cases, 105, 112.
In all cases, 181.
Control over administration of justice, 180.
Does not support legal aid work, 195.
Stockbridge, Henry, on preventive law, 214.
Storey, Moorfield, on bar's duty to legal aid,

239.
"Straw" Bondsmen

In criminal cases, 114, 125.
Ousted by defenders, 126.
Street Raiiways, compensation plan for pas-
sengers on, 90.

INDEX

271

Submission to Arbitration, see Arbitration.
Substantive Law

Fair, essential to equal justice, 5, 13, 205.

Importance of, 5, 13.

Satisfactory condition of, xii, 13.

Not a cause of injustice, 15.

Not self-enforcing, 16.

Adequate in domestic relations, 73.

Of landlord and tenant, unfair, 14.

Of public service companies, 14.

Unfair to injured workmen, 14, 84.

Changed by compensation acts, 87.

And arbitration, 69.

And conciliation, 67.
Summons, archaic form used, 33.

1 aft, William H., on public concern in litiga-
tion, 28.

Technicalities, see Procedural Law.
Term Fees, as court costs, 23.
Towns, charity work by lawyers in, 33, 188.
Train, Arthur, on need for defender, 116.
Transcript of Evidence, expense of, 27.
Trustee, Court

Need for, 57, 153, 202.
The plan, 57.

In English County Courts, 58.
Trustee Process, used for extortion, 9.
Twain, Mark, on legal aid work, 150.
Types of Legal Aid Organizations
Classification of five types, 169.
Extent of each type, 173.
Present situation in twenty-nine cities, 176.
Extent of work of each type, 192.
Change to charity type after 1910, 145.
Change to public type after 1913, 148.
Specialized types, 169, 171.

Criticism of, 170.
Law School societies, 174.
Bar Association societies, 174.
Independent v. Departmental Societies
General considerations, 175.
Superiority of independent, 176, 179.
Public v. Private Organizations
Argument for public, 180.
Experience of public, 184.
Conclusions, 186.

V ance, William R.

On failure of lawyer, 37.

Allies legal aid and law school work, 145.
Voluntary Defenders Committee, see New

York Voluntary Defenders Committee.

W ages, Claims for
Non-payment of, 183, 199.

Delays in, 17, 18.

Handled by small claims courts, 45, 55.

Collected by administrative officials, 94, 96
203. '

Use of criminal process, 98.

Arbitrated in cloak industry, 70.

Greatest legal aid work, 135, 136, 152.

Wage-earners, unable to collect wages, 7, 9,
42.

Walsh, Frank P., aids legal aid in Kansas Citv.
146. J

War Service, see Legal Aid Work : War ser-
vice.

Washington, D. C. (Legal Aid Society of
the George Washington University Law
School)

Law students start legal aid, 148.
Extent of work, 191.
Westchester County Legal Aid Committee,

founded in 1902, 142.
Wigmore, John H.
On failure of justice, 41, 42.
On importance of lawyers, 32.
On substantive law, 14.
On need for defenders, 116.
On size of legal aid work, 187.
On legal clinics, 227. [240.

Winslow, Chief Justice, on equal justice,
Witnesses
Cost of summoning, 27.
In domestic relations courts, 76.
Medical experts

In murder cases, 122.
Cost of, 84.

Under compensation acts, 84, 88.
Wood, Walton J.

Public defender in Los Angeles, 117.
Report of, on expense of office, 120.
Workmen, Injured

Substantive law unfair to, 84.
Need legal aid, 158.

Workmen in Interstate Commerce, need com-
pensation act, 90.

Workmen's Compensation Acts, see also Indus-
trial Accident Commissions.

Law unfair prior to, 14.

Secure more equal justice, 15, 84.

Effect on

Court costs, 26, 27, 84.

Delays, 84, 87.

Expense of lawyer's services, 85, 87.

Permit service of process by mail, 84.

Automatic settlement of cases, 87.

Extension of
To seamen, 90.
To passengers, 90.

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